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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: 2018-05-15

Court File No.: Ottawa 17-Y40833

Between:

Her Majesty the Queen

— and —

P.I., a young person

Before: Justice P. K. Doody

Heard on: October 24, December 12, 2017; April 17, 24, May 10, 2018

Reasons for Sentence released on: May 15, 2018

Counsel:

• S Donoghue, counsel for the Crown
• M. J. Lafleur, counsel for the defendant

Decision

DOODY J.:

Introduction

[1] The defendant pled guilty to one count of sexual interference, or touching for a sexual purpose a young person under the age of 16 on April 21, 2016 contrary to s. 151 of the Criminal Code and one count of breach of a probation order made January 19, 2016 by failing to keep the peace and be of good behaviour.

[2] This is my decision on the sentence to be imposed and the reasons for that sentence.

Circumstances of the Offence

[3] The parties filed a formal Agreed Statement of Facts. It is as follows, with some changes to remove any identifying information in respect of the victim and the young person:

1. On January 19, 2016, young person P.I. was convicted of one count of sexual interference pursuant to s. 151 of the Criminal Code. At the time of that offence, committed on December 19, 2014, he was 16 years old and the young victim was 13 years old. Having pleaded guilty to that offence, Mr. [I.] was sentenced to a 12 month term of probation.

2. The terms of that probation included, inter alia, a condition that he keep the peace and be of good behaviour.

3. Approximately three months into the term of youth probation, he breached that condition by committing another offence of sexual interference on or about April 21, 2016. Mr [I.] was approximately six weeks shy of his 18th birthday at this time and the young victim, T.K., was 11 years old.

4. On May 5, 2016, [police in the defendant's community] received a complaint from the school principal. [He] advised that an 11 year old girl, T.K., presented as suicidal at school. [A police officer] attended the school and located T.K. in her classroom. [A social worker] accompanied the constable. T.K. spoke privately with the [social worker] and disclosed to her that she had recently been sexually victimized. [The social worker] communicated the disclosure to [the police officer]. [He] advised T.K.'s mother of the disclosure and obtained consent to speak further with T.K. about the allegation. An audio-recorded statement was obtained, led first by [the social worker] alone with T.K. and subsequently also in the presence of [the officer]. In that statement, T.K. disclosed the details of the assault.

5. On or about April 21, 2016, T.K. was sexually assaulted by Mr. [I]. Early that evening, T.K.'s friend J.K. invited her and a third individual, C.K., to the residence of [D.I.]. Ms. [I.] was out of town at the time. The three youths were in the home when Ms. [I.'s] son, the accused [P.I.], arrived at the residence. Shortly after his arrival, C.K. and J.K. left the residence to pick up food at the local grocery store.

6. After they had departed, Mr. [I.] told T.K. to go into the bedroom and pulled her by the legs into the bedroom. T.K. tried to stop him but he was too strong. When they entered the room, Mr. [I.] pushed T.K. onto the bed and tried to remove her pants. T.K. tried to stop him by tucking her legs up to her chest and kicking him away. Mr. [I.] was able to pull down her pants. He then pulled down his own pants and underwear.

7. M. [I.] tried to go on top of T.K., but she was able to cover her genital area with her hands. He tried to pull her hands away but she was able to stop him. T.K. reports that he "almost" put his penis inside of her. She reports having asked him to stop at various points.

8. T.K. got off the bed and made attempts to dress herself. Mr. [I.] initially tried to stop her, but she was able to put her pants back on and leave the room. In total, T.K. estimates that she was alone with Mr. [I.] for about 10-15 minutes before C.K. and J.K. returned to the residence. Before she left, J.K. told her not to tell anybody about what happened. T.K. said she was "too scared" to say anything.

Circumstances of the Offender

[4] The defendant is an Inuk. He is now 19 years old. He turns 20 on […], 2018, 20 days from now. He was almost 18 years old at the time of the offences. A Gladue report was prepared by Michelle Zakrison of Tungasuvvingat Inuit. I am grateful for her work. It has been most helpful to me in making my decision.

[5] Mr. I. was raised in two communities in a remote part of Nunavut. His father passed away when he was 6. His mother has had an intermittent relationship with his stepfather for the past 12 or 13 years.

[6] Mr. I's life has had a number of tragedies. He was on an ATV with his father when the ATV hit a ditch and his father was killed. Mr. I. recalls that his father died saving his life by throwing him off the ATV. His mother's uncle died by suicide, as did his father's cousin. His mother's cousin was killed by his mother's second cousin in 2014.

[7] His mother's relationship with his stepfather has at times been violent. His mother disciplined him by hitting him before his father died, and occasionally after that until he was 16 years old. His mother has had problems with alcohol. The family moved to Ottawa from Nunavut in 2016. The Ottawa Children's Aid Society intervened in November 2017 and took his 3 younger siblings into care for 1 week as a result of an incident between his mother and his stepfather when both were drunk. The C.A.S. continues to be involved with his siblings.

[8] Mr. I. told the Gladue report writer that he regrets his actions. He repeated that to me. He has had some counselling. He has expressed a wish to get help about relationships with women, specifically related to healthy sexuality, consent, and healthy boundaries.

[9] Mr. I. was assessed by the Family Court Clinic. Both a psychiatric and a psychological assessment were done.

[10] The report from the clinic notes that he has a drug and alcohol problem that he tends to downplay. He has had some difficulty in school, and is in Grade 12, a year behind his age-related peers. He has just switched to the U[…] High School which, among other things, has courses intended to assist Inuit young men in our society. He has difficulties with his English courses, probably because he spoke Inuktituk for most of his life.

[11] A social worker at his prior high school expressed concern for him, saying that he was seen as a high risk student, given his drug use, tendency to attend school looking "haggard and beaten up", and reticence to talk about himself. The report notes that he prefers to spend time with his community rather than his peers from school. This is understandable, given his background and recent introduction to this southern urban community after a life lived in a completely different part of the country. Hopefully the move to the U[…] High School will help.

[12] The assessment showed no clear evidence of a major mood, anxiety or psychotic disorder. Mr. I. appears to be functioning within the low average range of intelligence. A sexual behaviours assessment showed he was well aware of the expectations for socially inappropriate behaviour and of the impropriety of sexual contact with underage children. He was assessed as a moderate risk to commit another sexual offence. He was diagnosed with disruptive behaviour disorder with features of oppositional defiant disorder, and a possible learning disability. It was recommended that he participate in a drug and alcohol treatment program such as Rideauwood or similar program that would be facilitated through an agency such as the Aboriginal Centre at Carlingwood. The report recommends various treatment regimes, but notes that a good fit with a counsellor/therapist with the skill to work with his language and cultural issues could be pivotal to his engagement and adherence.

[13] The Gladue report contains a similar recommendation. Ms. Zakrison, the report's author, recommended that Mr. I. attend the healthy sexuality programming nights at the Wabano Centre for Aboriginal Health, the Tungasuvvingat Inuit program called "I can MANifest Change", and see a counsellor at Tungasuvvingat Inuit for one-on-one counselling, specifically to discuss healthy relationships, healthy boundaries, and consent.

The Right Sentence

[14] When I initially heard submissions with respect to sentence, Crown counsel and defence counsel presented me with a joint submission for a 6 month deferred custody (expressed to be 4 months actual custody and 2 months community supervision) and supervision order, followed by 2 years' probation. As I was preparing my decision, I came to the conclusion that that sentence was probably not one which I am permitted to impose. I provided jurisprudence to counsel and asked them to consider their position. I also asked them whether they wished to apply to have me strike the plea, if the agreement to plead guilty had been based upon an agreement that I would be presented with a joint position for a deferred custody order.

[15] After I brought these cases to the attention of counsel, they returned to advise me that they no longer had a joint position. Defence counsel did not ask that the plea be struck.

[16] Crown counsel submitted that the law prevents the imposition of a deferred custody and supervision order. I agree.

[17] As I indicated in R. v. M.A., 2017 ONCJ 60, the provisions of the YCJA dealing with deferred custody are complex.

[18] Sub-section 39(1) of the YCJA sets out the preconditions to the imposition of a custodial sentence (including deferred custody). It states:

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.

[19] In 2012, the following definition of "violent offence" was enacted by the Safe Streets and Communities Act, S.C. 2012, c.1:

"violent offence" means

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[20] "Bodily harm" is not defined in the YCJA, but is defined in the Criminal Code (the definitions of which are adopted for the Youth Criminal Justice Act by s. 3(2) to the extent that they are not in conflict) as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

[21] A custodial sentence is therefore available when, among other things, a young person has committed an offence which causes any hurt or injury to a person which interferes with the health or comfort of the person and that is more than merely transient or trifling in nature; or the young person has failed to comply with non-custodial sentences. Leaving aside the issue of whether one breach of one probation order amounts to failure to comply with non-custodial sentences (the plural form suggesting more than one is required), it is clear to me that the agreed facts establish that the sexual interference in this case interfered with the health or comfort of the complainant in a way that was more than merely transient or trifling in nature. A custodial sentence is available.

[22] Sub-section 42(5) of the YCJA prescribes when deferred custody and supervision orders may be imposed. It provides both when it may be imposed and when it may not be imposed. It states that the court may make a deferred custody and supervision order if:

(a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and

(b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.

[23] "Serious bodily harm" is not defined in the YCJA or the Criminal Code. The Supreme Court of Canada held in R. v. C.D.; R. v. C.D.K., 2005 SCC 78 at para. 20, that the phrase "serious bodily harm", at least for the purpose of the previous definition of "serious violent offence" in the YCJA (which used that phrase), meant

any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant.

[24] I see no reason not to adopt the same definition where the phrase is used in s. 42(5), which was added to the YCJA in 2012, after the Supreme Court's decision.

[25] Consequently, a deferred custody order is not available where the young person has caused "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant".

[26] As the Manitoba Court of Appeal pointed out at paragraph 15 of R. v. J.A.H., 2016 MBCA 58, the Safe Streets and Communities Act, enacted in 2012, repealed the former s. 42(9) of the YCJA. The repealed provision had the effect of allowing a youth court to impose a deferred custody order even in cases where the young person had caused serious bodily harm if the Crown did not apply for a formal determination that the young person had done so. Now, a youth court is prohibited from imposing a deferred custody order in all cases where the young person caused serious bodily harm, no matter whether the Crown raises the issue or not.

[27] In J.A.H., the Manitoba Court of Appeal held that the facts admitted by the young person when he pled guilty, on their own, established serious bodily harm. The young person had admitted that he had forced sexual intercourse or sodomy with the victims. The Court, relying on Cory J.'s judgment in R. v. McCraw, [1991] 3 SCR 72, held that these acts, by their very nature, cause or attempt to cause serious bodily harm to victims. The Court wrote:

26 … certain facts need not be proven by the calling of evidence because they are sufficiently undeniable to notice judicially (see R v Find, 2001 SCC 32 at para 48, [2001] 1 SCR 863). In our view, it is beyond reasonable dispute that perpetrating major sexual assaults against young children causes them to suffer serious bodily harm. It is therefore not necessary for the Crown to tender victim impact statements from each of the 5 young victims, or to call them to the witness stand, or to call an expert to prove that the child suffered serious physical or psychological harm. This is also in line with the modern approach to the evidence of young victims of favoring procedures and practices which will reduce the "likelihood of inflicting further injury on a child as a result of involvement in the criminal process" (see R v F (CC), [1997] 3 SCR 1183 at paras 29, 41).

27 In the result, we are of the view that it can be inferred or presumed that forced anal and/or vaginal penile penetration committed on young children causes or attempts to cause serious bodily harm on the victims. In such circumstances, a youth court is precluded from imposing a DCSO and that leaves, in practical terms, as the only realistic sentence, a custody and supervision order (see R v KC, 2011 ONCA 257 at para 26, 276 OAC 267).

[28] The Manitoba Court of Appeal's decision in J.A.H. was followed by Wakefield J. of this court in R. v. J.B., 2017 ONCJ 542. In that case, the young person had been found guilty of sexual assault and forcible confinement. Wakefield J. declined to follow earlier decisions which had required the Crown to prove serious bodily harm by introducing victim impact statements or other evidence which established that the victim had from specific diagnosed psychological disorders, disabilities or other infirmities that have been connected to the assault by treating professionals. (R. v. S.(B.), 2017 MBPC 23; R. v. K.S., 2016 YKTC 23). He wrote:

49 In my view, with respect to those courts with contrary findings, there is now more than sufficient appellate authority as to the psychological consequences of sexual assaults and especially forced intercourse for me to infer the existence of serious bodily harm from the offence and factual underpinnings without any ancillary evidence or testimony and I find that the Crown has met its onus from that alone.

[29] I agree.

[30] The agreed facts make clear that the defendant committed an attempted rape on an 11 year old girl. The child asked the defendant to stop. He "almost" put his penis inside of her. He told her not to say anything and she did not because she was too scared. She presented as suicidal at school. I have no hesitation in concluding that these facts are sufficient to establish serious bodily harm. A deferred custody order is not available.

[31] Crown counsel submitted that an appropriate sentence would be a 3 month custody and supervision order consisting of 2 months in custody and 1 month in community supervision, followed by a 2 year probation order. Defence counsel submitted that the sentence ought to "mirror" the sentence originally agreed to between counsel, with a 2 year probation order, the first 4 months of which would be house arrest, the next two months with a curfew, and the following 18 months' probation on the same terms as originally agreed to.

[32] The purpose of a sentence imposed under the Youth Criminal Justice 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 rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[33] Sub-section 38(2) of the YCJA directs me to determine the sentence in accordance with, among other things, the principles that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender.

[34] I am required to consider all available sanctions other than custody, with particular attention to the circumstances of aboriginal young persons. The sentence must be the least restrictive sentence that is capable of achieving the purpose of sentencing, the sentence that is most likely to rehabilitate the young offender, reintroduce him into society, and promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community.

[35] The issue before me is complicated by Mr. I.'s age. He turns 20 in 20 days. Subsection 93(1) of the YCJA provides that a young person who is serving a custodial sentence in a youth custody facility shall be transferred to a regular provincial correctional facility for adults when he reaches 20 years of age unless the provincial director orders that he continue to serve the sentence in a youth custody facility. While that decision is the provincial director's to make, I was advised by a probation officer from the Youth Probation Office that the policy is that if a significant portion of the sentence remains on the offender's 20th birthday, he will be transferred to the local adult jail, the Ottawa-Carleton Detention Centre (the O.C.D.C.); if not, he will be allowed to serve his term at the youth custody facility.

[36] The youth custody facility has many programs available to young persons to assist in their rehabilitation. No such programs are available at the O.C.D.C. It is well known that the O.C.D.C. is overcrowded. It is not a place which rehabilitates its inmates.

[37] The offences committed by Mr. I. are extremely serious. He sexually assaulted an 11 year old girl. Despite her protests, he attempted to get on top of her and insert his penis. This occurred only three months after he had been placed on probation for a prior offence of sexual interference on a 13 year old girl.

[38] There is no minimum sentence for these offences. I have the jurisdiction to impose a non-custodial sentence.

[39] In my view, however, I cannot ignore the combined effect of s. 39(1) and s. 42(5) of the Y.C.J.A. I can sentence Mr. I. to a custodial term because the sexual interference was a violent offence, but I cannot sentence him to a deferred custody and supervision order because he caused the 11 year old victim serious bodily harm. Where, as here, the offender has a prior record for the same sexual offence; the victim was only 11 years old and six years younger than the offender; the offence was effectively an attempted rape; and the victim presented as suicidal as a result; a custodial sentence should be imposed in all but the most extremely unusual circumstances.

[40] I must at the same time, however, consider the particular circumstances of this case which suggest that the sentence ought not be too harsh. The Crown initially agreed to a deferred custody order, which is custodial but minimally so. Mr. I. is an Inuk man, with a tragic personal background common to many Inuit. I am required to consider all sanctions other than custody and impose the least restrictive sentence that will achieve all the purposes of sentencing. In the particular circumstances of this case, the prospect that Mr. I. may serve some of his sentence at the O.C.D.C. is significant. The O.C.D.C. is significantly more restrictive than youth custody facilities and will achieve none of the rehabilitative purposes of sentencing.

[41] Imposing a non-custodial sentence on Mr. I. would not be right. He needs to know that this behaviour is wrong and will attract significant and meaningful consequences if he repeats it. But it would be wrong to impose a sentence that he would serve at the O.C.D.C.

[42] In my view, the appropriate sentence for Mr. I. on the sexual interference count is:

(a) 4 weeks in secure custody;

(b) followed by 2 weeks community supervision;

(c) followed by 2 years' probation, during which he will be required to

(i) Perform 100 hours of community service;

(ii) Neither contact nor come within 500 metres of T.K., the victim;

(iii) Cooperate with all counselling services recommended by the probation officer for alcohol and substance abuse, sexual behaviour, and any other issue considered appropriate by the probation officer;

(iv) Attend, participate in, and complete the "Healthy Sexuality" programming nights at the Wabano Centre for Aboriginal Health;

(v) Attend, participate in, and complete parts 1 to 6 of the Tungasuvvingat Inuit program called "I can MANifest change" if he can do so when not attending classes at school;

(vi) Engage in counselling with a counsellor at Tungasuvvingat Inuit for one-on-one counselling specifically to discuss healthy relationships including sexual relationships; and

(vii) Attend, participate in, and complete the programming and services recommended by the Tungasuvvingat Inuit Gladue Caseworker, including for alcohol and substance abuse, anger management, non-violent conflict resolution, and assertiveness training as the caseworker sees fit;

(d) an order that he provide a sample of his DNA for analysis and registration on the DNA databank pursuant to s. 487.051 of the Criminal Code, sexual interference being a primary designated offence; and

(e) an order prohibiting him from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, or all such things, for a period of 2 years, under s. 51(3) of the Y.C.J.A.

[43] I authorize, under s. 113 of the Criminal Code and s. 51(7) of the Y.C.J.A., a chief firearms officer or the Registrar to issue a licence or registration certificate for a weapon covered by the prohibition order to allow Mr. I. to engage in hunting and fishing in Nunavut outside an urban area for sustenance purposes. This will allow Mr. I. to go "on the land" in accordance with his cultural traditions.

[44] On the charge of failing to comply with the probation order, I order Mr. I. to be subject to a 2 year period of probation, on the same terms, to run concurrently.

[45] I order that a copy of these reasons, the Gladue report, and the Family Court Clinic assessment be provided to Mr. I.'s youth probation officer and the Tungasuvvingat Inuit Gladue caseworker.

Released: May 15, 2018

Signed: Justice P.K. Doody