Court File and Parties
Court: Ontario Court of Justice
Date: December 4, 2019
Location: Ottawa
Information: 18-Y19538
Between:
Her Majesty the Queen
— and —
J.S. – a Young Person
Before: Justice Berg
Sentencing: December 4, 2019
Counsel:
- S. Goldfarb, counsel for the Crown
- B. McGarry, counsel for the defendant
Publication Restriction
PUBLICATION RESTRICTION PURSUANT TO S. 486.4(1) CRIMINAL CODE AND S. 110 YOUTH CRIMINAL JUSTICE ACT
Decision
Introduction
[1] J.S. is charged as a young person. The events underlying the offences are historical. He is presently 39 years of age. He has entered guilty pleas before me to the following charges:
that between the 9th day of October, 1991 and the 8th day of October, 1997 in Ottawa, he did commit a sexual assault on M.S. contrary to Section 271 Criminal Code; and
that between the 9th day of October, 1991 and the 8th day of October, 1997 in Ottawa, knowing that another person, namely C.S. was by blood relationship to him a sister, he had sexual intercourse with her contrary to Section 155(2) Criminal Code.
[2] I was provided with an agreed statement of facts. In regards to the count where M.S. is the victim, I was advised that she is the accused's older sister. During the period in question, when J.S. was approximately 17 years old and she 21 years old, he was staying over at the apartment that she shared with her boyfriend. She was asleep in her bed with the boyfriend beside her. She awoke in the middle of the night to find J.S. crouched by the side of the bed with his hand under the covers and touching her vagina. She challenged him and told him to leave the room, which he did. She noted that her brother was drunk at that time.
[3] The other count involves one of J.S.'s other sisters, C.S. who is about a year and a half younger than him. It is agreed by J.S. that when he was around 12 years old and C.S. 11, he would ask her to come to his room and would then touch her. Eventually, he asked her to hold his penis and play with it. She complied and touched it for a second and then pulled her hand away. On other occasions, he would show her a Playboy magazine and ask her to expose her lower body to him. He would usually look but sometimes touch her. On occasion, he would ask her to touch his penis and she would fondle it for a couple of minutes. I was advised that this would happen every three or fourth months.
[4] When she was 13 years of age, J.S. began inserting his fingers into her vagina. When she was 15 years old, he attempted to put his penis into her vagina. She asked him to stop as it hurt and he complied. When she was approximately 16 years old, he had sexual intercourse with her in his bed.
[5] C.S. indicated that the sexual contact stopped when she was roughly 16 years old. She allowed that her brother never threatened her in any way or used physical force to get her to commit any of the above acts.
[6] I have been provided with a victim impact statement from both sisters. M.S. attended court. I have heard the statements read out in court. I have also re-read them when preparing this decision. I wish to address briefly a common theme from both of the statements. Nothing, and I mean nothing, that your brother did was your fault. The blame is entirely his. Wondering what could have changed if you had acted in a different manner ignores the fact that you had valid reasons at that time for acting as you did. The fault is with your brother entirely.
[7] The Crown is seeking a global sentence of 18 months secure custody and 6 months open custody followed by two years of probation as well an order that a sample of his DNA be taken and a s. 51 YCJA weapons prohibition for two years. The defence submits that I should sentence J.S. to two years of probation and 240 hours of community service.
[8] At the time that he entered his pleas before me, J.S. did not have a youth or criminal record. However, I was told by counsel that he had entered pleas to similar offences at the Superior Court of Justice and that sentencing on those matters was pending. He was indeed sentenced on those counts on July 3, 2019. I note that J.S. was charged as an adult with respect to the Superior Court matters reflecting the fact that those offences occurred after the matters with which I am dealing. The Superior Court sentencing is reported as 2019 ONSC 4096.
[9] I have been provided with the Sexual Behaviours Assessment prepared by Dr. J. Paul Federoff, forensic psychiatrist, that had been ordered by Parfett J. for the Superior Court matters. I have reviewed that document. However, I must keep in mind that I am sentencing J.S. as a young person and not as the 39-year-old who was facing Madam Justice Parfett. Dr. Federoff's assessment is not, nor can it be an assessment of that young person. It is to be remembered, furthermore, that I must be careful not to re-sentence J.S. for the adult offences that occurred in 2005 or 2006 in one case, and 2008 to 2016 in the other.
[10] Nonetheless, I will here provide some biographical information of J.S. as an adult. He is 39 years of age. He completed high school. He served in the Canadian Armed Forces from 2006 to 2016 and received a medical discharge. He currently receives a pension from Veterans' Affairs. He has a history of depression, anxiety, PTSD, ADHD and borderline personality disorder. There is a history of some suicidal ideation. He takes a number of medications to address these issues and was seeing a psychologist on a regular basis. He has two children by his first wife. His second marriage broke up as a result of the present charges and those that were before the Superior Court of Justice. He saw his son from that second marriage on a regular basis until he was incarcerated.
[11] Dr. Federoff's report notes that the adult J.S. is in the "low risk category" to re-offend with respect to the present type of offence. He concludes that the accused's actuarial risk assessment places him at low risk (compatible with my clinical impression), and the majority of sex offenders with scores as low (good) as J.S. are not known to re-offend. With treatment, I believe J.S. will stay in the non-reoffender category.
[12] Mr. McGarry has also provided me with a report authored by a clinical psychologist and dated January 13, 2019. While this report may have been of assistance to Parfett J., given that it deals with J.S. as an adult offender, it is of little assistance to me in finding an appropriate youth sentence.
The Principles of Sentencing
[13] The offences to which J.S. had pleaded guilty date between 1991 and 1997. While the Youth Criminal Justice Act only came into effect in 2002 and thus he committed these offences when the Young Offenders Act was the law, section 158 YCJA requires that the matters before me proceed pursuant to the YCJA. For the purpose of s. 158 YCJA, the proceeding commences with the laying of the information or indictment (see s. 162 YCJA). The YCJA was amended in 2012 including changes to the section that deals with the purpose and principles of sentencing. The information before me (as well as the other related but now withdrawn information alleging sexual assault where C.S. was the victim) was sworn after 2012.
[14] The fundamental principles of sentencing in the YCJA (found at s. 3(1)(a) of that act) are based on accountability, promotion of rehabilitation and reintegration, and the prevention of crime. There is an emphasis on rehabilitation and reintegration (s. 3(1)(b)). The specific sentencing principles of the YCJA are found at Section 38:
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.
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 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.
(f) subject to paragraph (c), the sentence may have the following objectives:
(i) to denounce unlawful conflict, and
(ii) to deter the young person from committing offences.
[15] Paragraph 38(2)(f) was added to the YCJA in 2012. It does not establish a mandatory objective as the subsection is permissive. Deterrence was a secondary factor but not a principle of sentencing pursuant to the YOA and the pre-2012 version of the YCJA; to be clear, this refers to both general and specific deterrence (see R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 at paragraph 41). With respect to denunciation, see R. v. A.A., 2013 BCCA 202.
[16] Once again, I must stress that I am sentencing J.S. as a young person in a criminal justice system that is separate from that of adults. The youth criminal justice system is based "on recognition of the presumption of diminished moral blameworthiness of young persons": see, s. 3(1)(b) and also R. v. S.J.L., 2009 SCC 14 at paragraph 64.
[17] Subsection 38(3) lists the factors that a sentencing judge must consider:
- 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 the 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.
[18] The victim impact statements referred to earlier are clear indications of the harm done to M.S. and C.S. by their brother. That harm is obviously an aggravating factor that I must consider at this sentencing. Also aggravating is that the offences against C.S. occurred over an extended period of time.
[19] While J.S. did spend two days in custody as a result of being arrested on the charges before me and was held overnight for show cause, I do not find these two days to have any significant mitigating effect on sentence nor was it so argued by the defence. Of greater potential significance may be the fact that J.S. was bound by a house arrest condition of his bail (the so-called Downes-issue) and the plea of guilt. A further factor to be considered is the principle of totality. These will be discussed below.
[20] The fact that J.S. was very young when he commenced his sexual exploitation of his sister C.S. must be taken into account here as well. He was twelve years old when he started that activity.
[21] Finally, while I am sentencing J.S. as a young person, I note that the Sexual Behaviours Assessment of J.S. as an adult indicates that he is at a low risk to reoffend with the appropriate treatment. The fact that the young J.S. went on to reoffend does not diminish the prospects for the adult.
The Downes Issue
[22] In the late summer of 2016, J.S. was arrested on sexual assault allegations dating to a time after he had turned eighteen years of age. He was released on bail on September 2, 2016. Then, on June 7, 2017, J.S. was arrested on account of the allegations brought by C.S. and was released the following day, June 8, 2017, on a second recognizance of bail. Mr. McGarry has provided me with a copy of both of these bails in his materials. J.S. was thus at that point bound by the conditions of two separate bail orders; there was no new global recognizance of bail. Both orders dealt with J.S. as an adult. I was advised during submissions that, as a result of the evidence heard at the preliminary inquiry (including the viva voce testimony of both M.S. and C.S.), which was held into all the allegations against the adult J.S. and concluded on January 23, 2018, the adult charges where C.S. was the named complainant were withdrawn. Then, on August 2, 2018, the present information charging J.S. as a youth was sworn. On the face of the documents attached to the present information, it appears that the adult bail was not replaced by a bail pursuant to the YCJA. However, appearances can be somewhat deceiving. The situation is a bit more complicated.
[23] When looking at the information that is presently before me, I noted that it was sworn on August 2, 2018 as a relay of information 17-SA5065. I have examined this latter information. It was sworn on June 8, 2017 and deals with J.S. as an accused young person. The allegations are in one count and particularize an offence against C.S. during the same time period as in count 2 of the present information but as a sexual assault and not as incest. This information appears to have been withdrawn at the request of the Crown on February 6, 2019. I was the presiding judge and this was the date that J.S. entered his guilty pleas before me. More importantly for the present discussion, attached to this now withdrawn information is a youth bail with the following condition 2:
Remain in your residence
Except
for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling).
for purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other court Order
unless you are in the presence of your surety or an adult 21 years of age or older, approved of in writing by your surety, dated and signed
[24] I have no idea why no youth bail was ever ordered in relation to the information before me. I am of the opinion, however, that nothing turns on this fact.
[25] The information before me also particularizes an offence against M.S. As we have seen, M.S. testified at the preliminary inquiry. However, I have been advised by counsel that at the time of that inquiry, J.S. was not facing any counts in regards to allegations of criminal actions against her. Apparently, this was due to an oversight that was rectified when the present information was sworn. I further note in passing that there does not seem to be a recognizance of bail that was issued with respect to the M.S. count before me.
[26] Condition 2 of the recognizance in regards to the matters before this court, reads:
Remain in your residence
Except
for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling).
For purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other court Order
Unless you are in the presence of your surety or an adult 21 years of age or older, approved of in writing by your surety, dated and signed;
It is to be noted that this exact same condition was part of the bail ordered on September 2, 2016. It is also the exact same condition as the youth bail that was attached to the information that was withdrawn on February 6, 2019.
[27] After the preliminary inquiry, the charges against J.S. bifurcate. The ones before me proceeded through the youth court leading to the pleas of guilt on February 6, 2019 and today's passing of sentence. An indictment was placed before the Superior Court of Justice to deal with the adult charges and a trial date was for February of 2019. However, on January 19, 2019, J.S. entered pleas of guilt to certain counts on the indictment. On July 3, 2019, he was sentenced by Parfett J. to a global sentence of three and a half years in the penitentiary and stepped into custody to begin serving his sentence. To be clear, he had been out of custody up until that point and bound by the conditions of the two adult bails. Furthermore, he had been bound by the conditions of the youth bail from June 8, 2017 until February 6, 2019.
[28] After J.S. entered the pleas of guilt before me, sentencing was adjourned to September 6, 2019 to allow for the Sexual Behaviours Assessment ordered by Parfett J. to be prepared. Submissions were made by counsel before me on September 6, 2019 and the matter adjourned to today.
[29] The Ontario Court of Appeal, in the case of R. v. Downes has instructed sentencing judges who are engaged in a sentencing analysis to consider "[t]ime spent on stringent pre-sentence bail conditions, especially house arrest [as a] relevant mitigating factor" (see at paragraph 37 of that judgment).
[30] The defence has provided me with an affidavit from J.S.'s mother. It documents that the sureties were not willing to allow him to be outside of the residence except in their presence. It also states that the sureties had limited time during which they were free to accompany the accused out of the house.
[31] I am aware that Parfett J. dealt directly with this issue. At paragraph 45 of her sentencing decision, she wrote:
[i]n this case, I agree with Crown counsel that while J.S.'s bail conditions were strict, they were not onerous and J.S. could have enjoyed much more time away from the house had he chosen to make the necessary arrangements. Consequently, this factor will play only a minor role in the assessment of the appropriate sentence.
Whether or not I agree with this analysis in the context of J.S. as an adult, I am dealing with him as a young person.
[32] Ms. Goldfarb has submitted that Downes is not applicable in this case. First of all she submits that J.S. could have been sentenced on these present charges quite some time ago but that J.S. wished to be sentenced on the adult charges first. Yet one must recall that both this court and the Superior Court were waiting for the Sexual Behaviours Assessment to be prepared. While that assessment is more relevant to J.S. as an adult, I am not prepared to say that it offers nothing to the present analysis. Moreover, between mid-May and September 6, 2019, I had limited availability due to other court commitments and scheduled holidays; Dr. Federoff's assessment is dated May 14, 2019.
[33] The Crown has also submitted that Downes should be of no effect here because J.S. would not have been on house arrest for the historical youth charges if he had not also been on release for the adult charges. That is possible. It is also irrelevant. He was on house arrest for the youth charges.
[34] As we have seen, Parfett J. of the Superior Court did apply Downes when she sentenced J.S. albeit it played but a minor role in her assessment. I do not believe that this would prevent me from also applying the Downes-factor when sentencing J.S. as a young person. The principle is applied as a factor in sentencing, not a rebate (see Downes, supra). It strikes me that it must be relevant when sentencing a young person. This would be in keeping with the stated principles and purpose of sentencing a young person: s. 3 and s. 38 YCJA and given these statutory guidelines I am of the view that this factor must be of more significance in the sentencing of J.S. as a young person than it was when he was sentenced as an adult even where the exact same bail condition was in effect.
The Plea of Guilt
[35] J.S. has pleaded guilty to the two offences before me. Some benefit must accrue to him as a result. How does a plea of guilt come to be a mitigating factor in a sentencing? The Prince Edward Island Court of Appeal stated the following in R. v. Doucette, 2015 PECA 5 (see, too R. v. Holder):
[20] There is truth in the old adage that one who pleads not guilty seeks justice while one who pleads guilty seeks mercy. Absent good reason, a guilty plea must be taken into account in mitigation of sentence (R. v. Macki, 2001 BCSC 427, at para.55). There are two schools of thought as to why a guilty plea is a mitigating factor. The first is that a guilty plea is an expression of remorse and an acceptance of responsibility. The more pragmatic rationale is that it saves the justice system the time and expense of a trial. These two rationales were articulated by MacDonald J. in R. v. Bruce, 35 Nfld. & P.E.I.R. 530 (PECA), at para.14:
A second mitigating factor referred to by the trial judge was that she had pleaded guilty thereby saving a lengthy trial and this could also be taken as a sign of her remorse. Numerous courts have held that a guilty plea should be taken into consideration on a sentencing: R. v. Johnston and Tremayne, [1970] 4 C.C.C. 64 (Ont. C.A.); R. v. Carriere, 14 C.R. 391 (Que. C.A.). It has also been stated that a guilty plea should be given less weight where there is such a preponderance of evidence against the accused that the only reasonable choice or option left open is a plea of guilty. R. v. Spiller, [1969] 4 C.C.C. 211 (B.C.C.A.). In the present case the respondent had signed a statement in which she had admitted her guilt and it could be said that her only choice was to plead guilty. However, if the rationale for a policy of decreasing sentence where a guilty plea had been entered, is based on the consideration of the time saved by not having a trial, I am unable to accept the proposition that there should be less weight given to a guilty plea from a person who has been inescapably caught. I would agree with the trial judge that the guilty plea by the respondent should be a mitigating circumstance. ...
[21] In my view either or both rationales may be used to justify a reduction in sentence. The amount of credit engendered by a guilty plea however depends on the circumstances of the case. Some courts have held that a guilty plea can justify a discount of up to 25 to 33% (R. v. Weiler). That does not mean, however, that a guilty plea merits such a discount in every case (R. v. Lyons, [1991] P.E.I.J. No. 10 (PEICA)). There may well be cases where there is good reason to grant no reduction for a guilty plea. For example, a guilty plea entered at trial after the Crown has called some or all of its case is a recognition of the inevitable and not an expression of remorse nor does it save any appreciable time and expense. Such a guilty plea would merit little or no reduction in sentence.
[22] Where a reduction in sentence is warranted, it is not simply a matter of a mathematical calculation. There are many factors to consider including, but not limited to, as the strength of the Crown's case, the nature of the case, the timing of the guilty plea, whether the guilty plea saves a vulnerable victim from testifying, and the circumstances of the offender including his criminal record to mention a few.
Relevant here are the comments of Justice H.F. Pringle in R. v. Berquas, 2018 ONCJ 623 at paragraphs 38 ff.:
[38] Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for a guilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposed after a contested trial and those imposed following a plea of guilt.
[39] Dambrot J.'s decision in R. v. Pearce, supra was only one of two Ontario cases presented to me, where sentencing followed a guilty plea and not a contested trial. Justice Dambrot would have imposed a sentence between 12 and 15 years, save and except for the guilty plea and some non-exceptional mitigating factors. Instead, he imposed a nine-year sentence, which was between 3 and 6 years lower than the sentence he deemed otherwise appropriate. This case has assisted me in understanding the calculable difference in sentence a guilty plea may have. The difference in quantum should generally be meaningful.
[36] Neither M.S. nor C.S. had to testify before me due to J.S.'s pleas of guilt. I am well aware that they did have to testify at the preliminary inquiry into the adult charges, C.S. as a complainant and M.S. as a witness. However, that would have been relevant to the sentencing of J.S. as an adult: see paragraph 42 of Parfett J.'s decision. J.S. the young person did not require his sisters to testify. There is a significant mitigating effect that results.
Totality
[37] I am sentencing J.S. as a young person. He was 12 years of age when he began his abuse of C.S. and 17 years of age at the time of the incest. He is presently serving an adult penitentiary sentence for similar crimes. Any period of custody that I might sentence him to would be served consecutively to that adult sentence in the penitentiary.
[38] Section 718.2(c) Criminal Code is a statutory reflection of the common law principle that "where consecutive sentences are imposed, the combined sentence should not be unduly harsh or long" (see e.g., R. v. C.A.M., R. v. Johnson, 2012 ONCA 339). This is the case both where a judge has to sentence the offender to consecutive sentences for offences them and also where that judge's sentence would be consecutive to a pre-existing term of incarceration (R. v. Parry, 2012 ONCA 171). Given the sentencing principles inherent in the relevant version of the YCJA, I am of the view that this principle is of significant import in this case.
[39] When Parfett J. of the Superior Court sentenced J.S., she stressed the principles of denunciation and deterrence (see paragraphs 30 and 31 of her decision). Those are not principles that I am required to apply in my sentence. Yet I cannot ignore the fact that J.S. would have to serve a penalty predicated on adult sentencing principles before commencing any youth sentence. In other words, J.S. will have already been subject to the effects of denunciation and deterrence prior to commencing my sentence. When I further factor in the YCJA's emphasis on rehabilitation and reintegration, I conclude that any further incarceration would not respect the relevant principles of youth sentencing and thus would be harsh. Therefore, I find that a youth sentence involving further custody served consecutively to his adult sentence would offend the totality principle.
Sentence
[40] The foregoing has led me to conclude that the appropriate sentence in this case would be probation pursuant to section 42(2)(k) YCJA. The defence has conceded that the facts of this case require that I order the maximum period allowed by statute for youth probation: i.e., two years. I turn now to the timing of the commencement of this sentence.
[41] As discussed earlier, J.S. is presently serving an adult sentence of three and a half years. That term of imprisonment commenced on July 3, 2019. He has thus been in the penitentiary for the past five months. He will be under the supervision of Correctional Service Canada until January 2, 2023 be it behind bars, on parole, or on statutory release. If I place him on youth probation for two years commencing today, my order will expire on December 3, 2021. In other words, my order would not have any practical effect. While there will no doubt be efforts expended towards the rehabilitation of J.S. over the course of his adult sentence, I cannot determine what those steps will be. There is no evidence before me that would allow me to engage in that type of analysis. As a result, I do not feel that a probation order that would have no de facto effect would be in keeping with the principles of sentencing as articulated by the YCJA.
[42] Section 42(12) YCJA provides a solution to this apparent conundrum. That section reads, "[a] youth sentence or any part of it comes into force on the date on which it is imposed or any later date that the youth justice court specifies [emphasis added]". While this section has generally been used to put off the commencement of a custodial sentence to allow a young person to complete a school year (e.g., R. v. A.B., 2010 ONCJ 186, R. v. T.N. et al., 2006 BCPC 125, R. v. L.A.J., 2005 ABCA 113), I do not see any principled reason why it does not provide me with the jurisdiction to order that J.S. the young person commence his youth sentence after J.S. the adult has been released from the supervision of Correctional Services Canada. I note that this would allow for the proper rehabilitative approach as required by the YCJA. The further extension by two years of state supervision is not the goal here. It is the reintegration of J.S. into society. J.S. is therefore sentenced to two years of probation to commence on January 2, 2023.
[43] Mr. McGarry suggested that I order his client to perform a large number of community service hours. I decline to do so. In the context of the offences to which he has pleaded guilty before me, I do not see the performance of such hours as providing any meaningful reparation to the victims in this matter. Furthermore, I suspect that there will be significant problems in finding a placement for J.S. to perform those hours given his adult criminal record for sexual offences.
[44] There will be the following ancillary orders: s. 51 mandatory weapons prohibition for five years and an order that a sample of J.S.'s DNA be taken.
Released: December 5th, 2019
Signed: Justice Berg