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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

BECAUSE OF ONGOING PROCEEDINGS, ANY INFORMATION HEREIN ABOUT D. IS SUBJECT TO THIS SECTION.

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: December 19, 2019

File Numbers: 19-Y190127-03, 19-Y190127-04, 19-Y190127-05

Between:

Her Majesty the Queen

— And —

A., B., and C.

Before: Justice B. Weagant

Heard: November 14, 2019

Reasons for Judgment Released: December 19, 2019

Counsel

E. McNamara — Counsel for the Crown

J. Mazin — Counsel for the young person A.

R. Loccisano — Counsel for the young person B.

R. Lichtman — Counsel for the young person C.

WEAGANT, B., J.:

Introduction

[1] In the fall of 2018, A, B. and C., the three young persons being sentenced today, were all students at St. Michael's College School. They are athletes and they played on the school's football team. In the months of October and November of 2018, the young persons were involved in a series of locker room incidents which resulted in charges of assault with a weapon and sexual assault with a weapon. On October 3, 2019 all three plead guilty to those charges. B. has also plead guilty to a charge of making child pornography, as he photographed the sexual assault with his telephone.

[2] D., another young person was also involved in the incident. On June 26, 2019 D. plead guilty to the charge of sexual assault with a weapon before me and was sentenced to 2 years of probation, with conditions, and 30 hours of community service. D. was 14 years of age at the time the offence was committed.

[3] The three young persons being sentenced today were all aged 15 years of age at the time of the offences.

[4] As will be evident, and for reasons that follow, I am sentencing B., A. and C. each to a period of 2 years of probation, with conditions, and 30 hours of community service.

Agreed Upon Facts

[5] I begin with the agreed upon facts that formed the basis for the findings of guilt in this case. These are the facts as read into the record by the Assistant Crown Attorney.

[6] In September 2018, E., B., F. and G. were all new students at the school. B. and G. joined the junior football team. F. joined the basketball team. E. joined both, but by the end of September he had left the football to focus on basketball.

[7] C. and A. were already part of the junior football team. They were both captains of that team along with two others, H. and I.

September 18, 2018

[8] There was a September incident which involved C. and A. These facts were described for the record, but no plea was sought on this incident.

[9] On or about September 18, 2018, after a practice, the junior football team attend in their locker room in the basement of the school. G. went to his locker and started changing his clothes. He spoke briefly to a teammate and then heard a loud roar or chant of boys yelling, "EEEEEHHHHHH!"

[10] G. was surrounded by several people, picked up by the arms and legs and swung around. He was only able to see and identify two of those persons – C. and A. – who had him by the feet.

[11] The group put him down on the floor near the front of the change room. He was flipped over onto his stomach. People pulled his football pants down, partly exposing his buttocks. People started yelling, "Get the broom!" Then someone struck him hard on the buttocks with an object several times.

[12] G. did not know who had hit him until a video of this event went viral in the school showing J. standing over a prone G., wielding the broom used to clean the dressing room.

October 17, 2018

[13] On or about October 17, after a football game, G. went to the locker room with the team to change. He was at his locker when he heard a commotion, and a roar from his teammates similar to the prior incident. He turned and saw a group of people approaching him. He tried to run. Someone tripped him and went to his knees.

[14] G. named the people who had taken him down as a "mob of captains". Other witnesses named E., C., A. and B.

[15] Once G. was down, B. dropped back to video the event.

[16] On the floor, three people were involved in what happened next. They pulled his trousers down and he struggled to pull them up. E. smacked G. hard on the bare buttocks with his hand. People laughed.

[17] G. had seen someone with the broom. After that loud smack, he was assaulted with the broom. The broom was shoved into his buttocks and anus several times. G. described being held down while a person used the broom.

[18] G. got up and saw the same group of people who had attacked him gathered around B. and looking at his phone. B. asked G. if he wanted to see the video. G. said no, but begged B. to delete the video. B. deleted the video.

November 7, 2018

[19] On November 7, St. Michael's College School played St. Andrew's in a championship football game. St. Michael's won. After medals were presented, everyone descended to the locker room.

[20] By approximately 6:25 the team was in the locker room. The coaches gathered at the door to begin their post-game speeches.

[21] At this point, E., F. and another unknown boy tried to enter the locker room but were told to leave by Coach K.S. E. and F. went back up the stairs.

[22] The coaches were in the locker room for approximately 7 minutes. Then they left so the boys could celebrate their win. Coach L. immediately returned to throw a bag of balls into the locker room. There were no adults in the locker room as of 6:31.

[23] Surveillance footage shows that at 6:32:44, E. entered the locker room. He is clad all in black, wearing black track pants with three white stripes and was carrying a red backpack. 5 seconds later, F. enters the locker room. He wanted to ask a friend on the football team for a drive home.

[24] About 30 seconds after F. entered the room, someone ran and shut the locker door. Inside the locker room, when F. went to speak to his friends, but while at their lockers, he heard C. say, "get him!".

[25] Multiple people grabbed F., including C., A., E. and B. Once F. was down, B. recorded the offence with his cellphone.

[26] On the floor, C. restrained F., holding him by the legs and hips. A. held him down from the right arm and shoulder area. E. held him from the left arm and shoulder. F.'s pants were pulled down.

[27] The cellphone video (exhibited in this proceeding) shows that C. and A. tore at F.'s clothing, ripping his underwear apart. C. pulled F.'s pants down further, exposing his bare buttocks. They flipped F. onto his left side.

[28] Someone shoved the green broom handle into F.'s face. He tried to protect himself but E. and A. restrained him. The crowd around them screamed and yelled. The broom moved down to F.'s buttocks and between them. The camera footage pans up the broom to an unknown suspect who had just inserted the broom between F.'s buttocks. The camera footage then pans back down the broom which then goes into F. anus. The footage pans back up and shows that D. (previously sentenced) had done this and he then dropped the broom.

[29] C. then picked up the broom and shoved it into F.'s rectum. The crowd yelled.

[30] All the while F. struggled against them and yelled at them to stop.

[31] They released him and he left the locker room several minutes later. The video of the offence was shared around the school and came to the attention of the school administration. The young persons in front of the court were identified.

[32] The young persons were arrested on the F. offences on November 18 and arrested on the G. on December 19. They were held in police custody for a show-cause hearing after each arrest.

[33] All 3 were expelled from St. Michael's College School.

[34] The three young persons plead guilty before me on October 3, 2019 to the charges of assault with a weapon and sexual assault with a weapon. Additionally, B. plead to one count of making child pornography. The three admitted as correct the facts I have recorded above. Accordingly, I found all three guilty and adjourned the sentencing hearing to November 14, 2019. At that time I received submissions as to sentence from Crown counsel and Defence counsel.

Pre-Sentence Reports and Assessments

[35] For the purposes of this sentencing, I ordered and received psychological reports for each young person, prepared by different psychologists at the Centre for Addiction and Mental Health (CAMH). I also ordered and received a cognitive and academic assessment prepared for each young person. I also ordered and received a presentence report prepared by three different probation officers from Ontario's Provincial Director's office.

[36] I received very articulate and helpful submissions made by the assistant Crown attorney, and each young person's defence attorney.

[37] I received a victim impact statement prepared by the parents of one of the victims.

[38] There was one further and important piece of evidence I considered on this hearing. On consent of all counsel, the report A Time for Renewal, was made an exhibit. A Time for Renewal is the final report of the St. Michael's College School Independent Respect and Culture Review Committee, commissioned after the present events came to light. The committee, chaired by lawyer Mark Sandler, looked into, among other areas, the traditions, social and cultural practices and values at the school, that may have contributed to any alleged student sexual or physical abuse.

[39] While the report has very limited application on a sentencing hearing, I will be referencing some relevant results of the key-informant survey, which was done to aid the committee in making the final recommendations in the report. To be clear, this report was not admitted as a piece of stand-alone evidence, but for the following limited purpose. As most of the information concerning the school culture gathered by the psychological assessors was as a result of self-reporting by the boys themselves, data collected for the purpose of preparing A Time for Renewal is useful to shine light on the accuracy, or inaccuracy, of the boys' reporting during their assessments.

[40] Lastly, I again note that I presided in the case of the first plea of guilt in these matters (R. v. D., sentenced June 26, 2019). Where elements of that prior sentencing inform any aspect of the current proceedings, I will be careful to articulate what I am importing and its relevance.

Positions of the Parties

The Position of the Crown

[41] It is the Crown's position that after a proper balancing of the principles under the Youth Criminal Justice Act and through a judicious use of the discretionary principle of 'denunciation', I should arrive at the following sentences:

For A., 10 to 12 months custody followed by 18 months of probation, an order for DNA and a 2-year weapons prohibition.

For C., 12 to 15 months of custody followed by 18 months of probation, an order for DNA and a 2-year weapons prohibition.

For B., 12 to 15 months of custody followed by 18 months of probation, an order for DNA and a 2-year weapons prohibition.

The Position of the Defence

[42] It is the position of the lawyers for the three young persons that a proper weighing of the principles taking into consideration all of the available evidence, should lead me to impose a community disposition of two years' probation.

[43] It is common ground that because the offences involve violence, the 'gateway' to custody is open to the Court under section 39(1) of the Act.

[44] For what I say below, it is my ruling that each of these three young persons will be sentenced to two years of probation, on terms that I will craft in order to address the apparent and identified factors which led to the three young persons' participation in the events.

[45] An offence of this nature cannot be viewed in isolation. In deciding the appropriate sentences in this case, I have considered the gravity of the offences, the context in which they occurred, as well as the impact on the victims. All of this was done in the context of an offender centered approach to youth sentencing.

Discussion

I. The Seriousness of the Offences

[46] Before embarking on the complete balancing exercise in which I am required to engage when sentencing a young person under the Youth Criminal Justice Act, I wish to state my view about the seriousness of the offences in this case, as this issue threads through all of the other considerations.

[47] The YCJA requires that the sentence imposed on a young person must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence (s. 38 (2)(c)). Thus, a cornerstone consideration in the sentencing of young people is proportionality and, to a certain extent, all other sentencing principles rest on the proper application of this principle. Because I am urged to regard denunciation as a consideration in this sentencing, I will note here that the discretionary consideration of 'denunciation' is explicitly subjugated to the principle of proportionality (s. 38 (2)(f)).

[48] I consider the offences in front of the court to be very serious. In this case the young persons participated in two violent mob attacks behind closed doors with two vulnerable victims. The fact that no physical injuries ensued does not mitigate from the overall seriousness. In addition to being a violent assault, this was a violent sexual assault. This was male on male simulated rape, ostensibly done in the pursuit of fun and excitement, but really perpetrated for the purposes of humiliation and subordination. By asserting its masculinity in this way, the larger group challenged the masculinity of the victim in order to strengthen its own. It is what we currently call 'toxic masculinity', and of a high order.

[49] Regarding the child pornography count against B., this is also a very serious matter. Knowing the video exists and absent proof that all copies have been erased, leaves the youthful victim subject to the persistent fear of further public exposure and undermines his ability to move forward with his life.

The 'Cultural' Context

[50] I want to begin this discussion by addressing the context in which these offences occurred. In particular, the Court cannot disregard the role that normalization of bullying and sexual bullying in the school culture could have played in these offences.

[51] Madam Crown began her submissions by reinforcing what this sentencing hearing was not about. As she put it, this case isn't Regina versus St. Michael's College School and that is correct. With respect, however, I find it hard to say that the school's action or inaction about the problems under its roof, regardless of whether civil liability is ultimately established, played a neutral role in the case in front of me. All of the psychological assessments concluded that the stage was set for these terrible events by the existing school culture.

[52] In her psychological assessment of B., Dr. T. Skilling, accepting B.'s description of physical and sexual bullying occurring routinely in the school, and upon noting that B. did not fully appreciate the criminal nature of the group's actions or the potential negative impacts on the victim, says:

This normalization of assaultive behaviour among the boys appears to have created an environment at the school, which provided the opportunity for even more concerning behaviours to take place.

[53] A. was assessed by Dr. T. Grimbos. Dr. Grimbos also made reference to the culture among the boys in the locker room. While she was careful not to gainsay A.'s responsibility in participating in the events in front of this court, Dr. Grimbos writes,

The role of climate/culture in the locker room cannot be discounted, as three incidents summarizing assaults suggest at the very least a "roughhouse" culture on the team that may have been normalized to the point where such extreme behaviours could possibly unfold.

[54] C. was assessed by Dr. J. Vinik. She, too, concluded it is important to consider that the culture of sexual bullying in the school, as described to her by C., likely normalized such behaviours. Dr. Vinik was also careful to point out that none of the described school cultural behaviours described by C. reached the severity and seriousness of the offences in front of the court.

[55] These are conclusions reached by the assessors based on reports from the boys themselves. The Sandler report, mentioned above, helpfully corroborates what the boys reported to the psychological assessors about bullying behaviours in the school. I will refer to some of the report's findings, but I stress again the limited usefulness of the report in this sentencing. The report was not prepared for any forensic purpose, but to give guidance to the school in terms of future programming and education. Further, in spite of the publicly esteemed membership on the committee, which is acknowledged, the methodology employed in amassing their findings was not the subject of any evidence called here, nor was it addressed in submissions by counsel in this case.

[56] The way each youth described the school culture from his particular experience, which in turn led three different assessors to point out the role that normalization of bullying and sexual bullying could have played in these offences, was indeed corroborated by the Sandler Report. A survey of the current student body (96% of the students participated) indicates that 21.9% of the boys reported being bullied during their time at the school. 51% indicated they had witnessed bullying at the school. 4.7% of the boys reported they had been "hazed", with hazing defined as a type of bullying that involves humiliating and sometimes dangerous initiation rituals. 54 boys among the current population of students reported being sexually bullied.

[57] Former students were also surveyed. Of the 753 former students who responded, 39.6% said they were bullied at least once while attending the school. Of that group, a quarter reported that they had been subject to the bullying for a year or longer. Of that group, 18% reported they had been sexually bullied. 4.9% reported they had been hazed while at the school; this is consistent with the numbers found among the current student body. These findings suggest that the youths in this case entered an entrenched culture of bullying and hazing in their school.

[58] The attitudes of staff members are also illuminating. 61 current staff members were also surveyed, with 34 of them being teachers. 37% of the staff indicated they were aware of bullying at the school prior to the allegations faced in this court. 22.8% of the staff were aware of hazing prior to the incidents in the fall of 2018. The majority of staff (59.6%) did not view bullying as a serious problem at SMCS. These results are important because these youths were not being supervised at the time the offences occurred.

[59] The report ultimately concluded that SMCS has a 'bullying' problem.

[60] In the case of A.B. v. Bragg Communications Inc., 2012 SCC 46, Abella, J. cited the following definition of bullying as

. . . behaviour that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person's body, feelings, self-esteem, reputation or property. Bullying can be direct or indirect, and can take place by written, verbal, physical or electronic means, or any other form of expression.

[61] In my opinion, this nomenclature – 'bullying' – is a term that reflects the power and domination component of the behaviour. Hazing, in turn, describes bullying in a specific context, and although could be perpetrated by a single individual, we most commonly think of it as being the work of a group, and associated with initiation of new members of a sports team.

[62] For the purposes of this sentencing, I regard the offences in this case as being a form of hazing, a specific type of bullying. The offences occurred in a locker room, where younger or smaller members of the team were subjected to abuse and humiliation at the hands of a large group.

[63] The Sandler report concluded that hazing, itself, did not figure prominently in the school's culture. Certainly, the survey did not uncover evidence that hazing such as the type going on in this case, had ever occurred before.

[64] The theme (if I can call it that) of the prevalence of bullying at the school, also emerged as a factor in the sentencing of the prior young person.

[65] I agree with Madam Crown that the school is not on trial for what went on in that locker room. I was given no evidence as to the reason there was a lack of supervision in the locker room. Whatever the reason, that lack of supervision provided an arena for these events to happen. It is also significant that the victims did not speak to anyone in authority at the school. This could reflect a male code of conduct among adolescents, or it could reflect a lack of confidence that the coaches would provide support.

[66] The Sandler report also canvassed the locations where bullying or hazing behaviours occurred. The most common locations for bullying were the hallways, lockers, outside, the café and on social media. Sports related locations were identified less frequently. The locker room was identified, but again, not as a common location.

[67] Nonetheless, the locker room, not being a public area, permits a different atmosphere than do the hallways. The facts tell us that the incidents took place after successful wins on the playing field. The facts tell us that the incidents took place in the absence of adult supervision.

[68] Having considered all of this evidence, I conclude that the criminal behaviour in that locker room was fertilized by an atmosphere in which bullying was part of the normative culture of the three boys being sentenced today. The incidents in this case were a further and more extreme criminal extension of what was already going on in their school lives.

[69] Furthermore, far from being irrelevant, in my view this 'culture' in which the boys found themselves, is germane to the presumption of diminished moral blameworthiness principle contained in section 3 of the legislation. I bear in mind that the Supreme Court has held that this presumption to be a principle of fundamental justice under s. 7 of the Charter: Young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment. Indeed, that is why there is a separate legal and sentencing regime for them. See R. v. D.B., 2008 SCC 25.

[70] In addition, an exploration of the young persons' cultural context formed part of the criminogenic risk assessments, as ordered and received by this Court. When psychologists look at risk to reoffend, they identify established criminogenic factors and target them for remediation in the effort to reduce the chance of recidivism. All three psychologists identified peer relationships and peer pressure as a criminogenic factor. To the extent that peer pressure played a role with all three of these boys, their ability to engage in independent thinking is a legitimate treatment objective, especially (to quote Dr. Skilling) "… in the context of team dynamics in the sports arena".

[71] This court is not in a position to expound on why males behave the way they do when they find themselves in a pack, feeding off of each other's energy, as they appeared to have done here. Theories abound about this type of behaviour.

[72] However, I think it is safe to take notice of the following. "Hazing" or initiation rituals, and other severe forms of bullying, were not invented by these boys in the fall of 2018. It is well-known that these behaviours sporadically occur in male sports-related situations. Perhaps the prevalence of these behaviours is reflected best by the fact that we actually have coined a word for it in English: hazing.

[73] As I say, I do not need to explore social science evidence on the psychology of male group behaviour in the hazing context, nor would general expert opinion be particularly helpful in a sentencing process which demands an individualized approach. What is important is why these young persons participated in the events which bring them in front of the court. I have that evidence because the psychologists did explore the nature and the emotional context of each boy's participation.

[74] As will be evident, the psychological assessments will play a central role in my identification of the rehabilitative targets.

The Young Person B.

[75] B. was 15 years of at the time of the offences. Pursuant to my order under section 34 of the YCJA he was assessed by Dr. T. Skilling and psychometrist A. Takagi for the purposes of sentencing B. Two reports were prepared. First, he was assessed for general psychological functioning, what we commonly call a 'section 34 report'. A cognitive and academic assessment was also prepared.

[76] Dr. Skilling's report, and the reports of Dr. Grimbos and Dr. Vinik, all begin with a review of all interviews and sources of information. Aside from interviewing the young persons and their parents, collateral information was gathered from former school vice-principals (including SMCS), guidance counsellors, current and former therapists and probation officers. Standardized psychological tests were administered in all three cases; the results are discussed below.

[77] B. lives with two younger brothers and his parents. Both parents work outside of the house, and although the family is not wealthy, there are no current financial concerns.

[78] B.'s developmental and medical history are unremarkable.

[79] B. gets along well and the family reports that it is functioning positively overall. B. has a normal social experience (relating to relationships outside of the family), and there were no reported concerns relating to his sexual development. His romantic experiences to date have been heterosexual.

[80] He is a decent student who has a passion for football. He left his old school to start SMCS to further his long-standing dream of attending an American school on a football scholarship.

[81] His former school reports no concerns regarding his behaviour or attendance.

[82] The cognitive and academic assessment placed him in the high average range "… indicating strong cognitive abilities for his age." There is no evidence of specific learning difficulties or any relevant learning-related diagnosis.

[83] Psychologically speaking, B.'s parents report that they were concerned about his mental health following his arrest, noting he became withdrawn and quiet. Standardized testing put B. in the clinical range on the "Children's Depression Inventory". This finding is consistent with his parent's observations.

[84] B.'s parents started to address this issue 5 months ago. B. entered psychotherapy with a therapist, M. L. Mr. L. thinks B. has benefitted from the therapy so far, in particular in helping B. cope with feelings of shame and regret over the offences.

[85] Dr. Skilling assessed B.'s current mental health. She reports he exhibited symptoms of emotional upset during the interviews; he became teary when discussing his arrest, the impact on his family of these charges and when discussing his regret and feelings of shame.

[86] It is clear that the events, including the arrest and its aftermath, have had a traumatic impact on B. He was arrested in a police 'take down' while being driven to school. The reason for this dramatic police intervention was so that they could seize his cellphone before he had a chance to erase anything. B. Both B. and his mother described the impact of this arrest as being traumatic. Although B.'s symptoms have abated with therapy (i.e. his sleeplessness, mood and anxiety problems), post-trauma stress, anxiety, negative mood, sense of humiliation and rejection still remain of clinical concern. This led Dr. Skilling to write that he meets the criteria for an adjustment disorder. This disorder is described as a significant deterioration in mental health functioning that interferes with daily functioning and occurs in response to a specific stressor.

[87] B. has had no prior criminal involvement and has not been a concern behaviourally or academically in the past.

[88] Dr. Skilling discussed the offences with B. and in my view, exposed some valuable clues to our understanding of B.'s involvement.

[89] B. started St. Michael's College School in September. He was initially concerned about the school environment, as he witnessed physical and sexualized behaviours. He described behaviours such as people being pushed into lockers, tackling in the hallways, hitting on the buttocks and the grabbing of sexual body parts. He had not been exposed to this type of behaviour in his previous school. At first, he was afraid that he would be a victim (being new) but he soon became accustomed to the behaviours, believing they were part of the male culture of the school. Further, and importantly, he reported that he didn't really see these behaviours as physical or sexual bullying, but rather "play fighting" behaviour.

[90] He also started feeling that he was a real part of the football team. He reported that the behaviours described above occurred in public places. The locker room had a different culture, as there were more serious types of events. For example, boys had their pants pulled down and they were spanked on the buttocks. B. experienced this himself, but he took no offence because he thought it was part of the "… normal peer relationships at the school".

[91] Regarding the two assaults, B. admits videotaping both, but cannot explain why he did this, other than it being part of the spontaneity of the moment. He erased the first video, but not the second. He claims to have recognized the seriousness of the second assault, but aside from admonishing those who could hear by saying "chill", he did nothing to stop the sexual assault. B. reported that he did not believe these events were planned in advance. He also reported that he did not (at the time) view these incidents as targeted acts of bullying, as all persons involved were friends. In fact, after the offences, the boys all went back to spending time together and their relationships appeared to return to normal.

[92] Regarding the second video which was not erased, B. indicated that he was approached by member of the basketball team who demanded the video be produced. B. reports thinking the students making the demands were upset about the incident and it was then that B. started to realize the gravity of what transpired. B. tried to get out of giving the basketball players the video, but felt he did not have a choice other than to comply. He reported that he felt intimidated by the older youth and was too frightened to say no.

[93] Dr. Skilling asked B. directly why he did not intervene in the assaults. He reported that he really doesn't know what he was thinking at the moment. He reported that he likely felt some hesitation to intervene because he did not want to question the authority of the other boys who were team leaders. He told Dr. Skilling that he likely was also shy of being targeted himself as "no one wants to be next".

[94] B. expressed shame, self-disgust and regret for his actions. He also went on to say that if he found himself in such a situation again, he would intervene. I will return to this theme again, but I note here that B. reported to Dr. Skilling that these events would stay with him for the rest of his life, not only for what he did, but also for what he did not do. In my 25 years on the bench, 20 of them exclusively in youth court and family court, I have never heard an adolescent articulate his remorse so clearly. This was one of the details in Dr. Skilling's assessment that led me to conclude B. could be held accountable by a community-based disposition. In short, there is no evidence that specific deterrence, an optional principle I could bring to bear, is needed in this case. I am satisfied B. has been deterred from engaging in this type of conduct in the future. Dr. Skilling's assessment supported this conclusion.

[95] Dr. Skilling assessed B. for risk to reoffend using standardized testing. B. presented as a youth at low risk for continued legal difficulties. There is no history, other than the offences in front of this court, of participation in illegal sexual interactions. With regard to dynamic risk factors (recent and potentially changeable) there is no evidence that B. has deviant or obsessive sexual interests, or that his attitude towards the victims is inappropriate.

[96] In terms of psychosocial functioning, Dr. Skilling found no history of poor self-regulation, interpersonal aggression, antisocial interpersonal orientation, or concerns about intimate peer relationships. B. was assessed for "treatment readiness". He scored well above the 'cut off' mark, suggesting he is willing to change, willing to understand the nature of his criminal behaviour and willing to participate in treatment services.

[97] I note here that a common theme for all three boys is that they didn't fully appreciate the sexual or criminal character of the behaviour which forms the basis of the charges. All, including B., have started to develop an understanding of the enormity of the events, the sexual nature of the violence and the possible impact on the victim. All have expressed regret, shame and are willing to take blame for their actions.

[98] Although B. has already engaged in a course of therapy, it is Dr. Skilling's recommendation that he be re-engaged in individual therapeutic services to explore and address the following:

1. Ongoing mood and anxiety symptoms

2. Fully explore and understand motivation for videotaping the offences

3. Fully explore the sexual nature of the offences and the link between sexual bullying and the elite male environment

4. Continued leadership skill building and practice of those skills in real life to ensure no susceptibility to peer pressure, especially in the context of pressure related to group behaviour such as sports.

[99] A presentence report was prepared by Faithlyn Ouellet. She identifies two programs that could be of help in planning for B.: Healthy Intimacy for Adolescents (Family Services, York Region) and Radius Child and Youth Services. The latter program specializes in working with youth who have been involved with sexually harming behaviour.

[100] In her summary and recommendations, Ms. Ouellet identifies lack of maturity as being a contributory factor to the behaviour, but then identifies the self-awareness and insight he has gained from counselling B. Ms. Ouellet makes no specific recommendation as to sentence, but assures that if custody is deemed appropriate, the Provincial Director would support transition from B.'s current school to the new learning environment. If I deem B. suitable for a community-based sentence, Ms. Ouellet recommends continued counselling. It is her opinion that he would benefit from sexual specific counselling. To this end, she referred me to two agencies, as outlined above.

The Young Person A.

[101] A. was assessed by Dr. T. Grimbos and psychometrist D. Molodenski. A. was 15 years at the time of the offences, but 16 years at the time of the assessment.

[102] A. was born and raised in Toronto. His biological parents separated 3 years ago. His mother has custody of the children, but the two children visit their father periodically. Both parents are employed outside of the house. While the parents were together, the financial situation was stable. Since separation, A.'s mother is struggling financially.

[103] A.'s mother reported that there were no issues developmentally, no remarkable medical history and no major injuries or accidents in A.'s growing-up. He was not a discipline problem (mother describes him as "average" in this regard; A. believes he was 'well-behaved'). The divorce had significant impact on the family members, and Dr. Grimbos suggests that A. could use some therapy in processing his feelings about the breakup.

[104] Currently, mother engages in 'enhanced' parental supervision, curtailing and disallowing certain relationships. The other boys on the team were A.'s core group of friends. According to A., the only associates he has ever had that were involved in the justice system are the friends who also participated in these offences.

[105] Currently, A. is not romantically involved, and this is currently specifically forbidden by his mother.

[106] A. has been volunteering at a church on Saturdays, and according to his supervisor there, A. initiated this service and is doing well.

[107] Academically, A. has been an average student. His school record reveals no suspensions or expulsions. He attended St. Michael's for grade 9 and 10. After his expulsion from St. Michael's, he tried to enroll at the school where he had previously wanted to complete his high-school. However, his enrolment there was met with resistance from other parents (including, according to A.'s mother, a parent of one of A.'s friends from the team at St. Michael's). The result has been that A. has had to do his schooling online after these offences. In the fall of this year, he was allowed to enroll at his school of choice and he plans to play football next year. Both SMCS and the new school's guidance teachers describe A. positively. He is progressing well in his new school placement.

[108] The academic and cognitive assessment reveals that A. meets the criteria for learning disability in the area of visual-spatial processing of information. Given his historical success at school, the presence of this previously unidentified disability has meant that A. has had to work harder than his peers to equal their success in certain subject areas, such as math.

[109] A. himself has no history of mental health concerns. Since the offences, A.'s mother has engaged the services of two therapists. The therapists report to Dr. Grimbos that, in spite of A.'s initial hesitancy to engage, he eventually realized it was to his benefit. He has progressed in therapy. Importantly, he has been observed to be able to begin seeing the offences from a variety of angles, including from the perspective of the victims.

[110] A. finished all therapy at the end of the summer. The therapist contacted by Dr. Grimbos for collateral information expressed the view that A. should re-engage therapy services.

[111] Regarding his current mental health, A. self-reports put him in the non-clinical range for depression, anxiety and trauma-related symptoms. His mother, on the other hand, identified at least two periods (the marriage break-up and the after the arrest for these offences) where there was an observable impact on A.

[112] Neither mother nor son identified substance or alcohol abuse, or significant anger, aggression or oppositional behaviours. Before this, he was never involved in the justice system.

[113] Dr. Grimbos explored the offences from the point of view of what A. was feeling then and now.

[114] A. was a team captain and he reported that the captains felt untouchable, and that this may have contributed to the locker-room behaviour. As with the others who have been assessed, he reported feeling worried that if he didn't participate he might be next. Given his small size and the fact the victims tended to be smaller in statute, he felt he might be victimized.

[115] Dr. Grimbos writes that A. reported getting caught up in the excitement, but feeling shocked once he saw the extremity of what was unfolding, and he stopped paying attention to his actions. He specified being fearful at the time, as outlined above.

[116] Dr. Grimbos is concerned about the fact that A. did not put a stop to the turn of events and has a further concern that he did not appreciate the precise nature of the seriousness of the event at the time. She says that in those moments he followed his peers without critically thinking about the situation or asserting himself as the event unfolded in such an extreme way.

[117] Dr. Grimbos writes that there was a "diffusion of responsibility" among the group and A. succumbed to peer pressure. According to her, this is an area that needs to be addressed in therapy.

[118] Today A. has a different perspective. As with the other young persons, he reports that although the seriousness of the offences was not completely apparent to him at the time, he has come to appreciate the seriousness of the assaults. As with A., he now expresses remorse, not only for the victims, but for the fact that there were things he could have done at the time to stop what was going on.

[119] He was asked directly if these incidents were connected to hazing. A. said that at the time he didn't know what hazing was. He said these events were not part of some tradition, but the "random" idea of one of his friends.

[120] He expressed his willingness to invest in making changes in himself. Notably, he wishes to be a person who gives a voice to those without one. Further, he has learned that people must accept their mistakes and the consequences that follow.

[121] A.'s mother reported that he has expressed the same feelings to her. She is aware of his shame, remorse and embarrassment. She said he is particularly ashamed because he, as a team captain and leader, did not act accordingly.

[122] In sexological functioning, A. was assessed as being heterosexual with no remarkable or concerning abnormalities. He expressed that he would be open to any kind of counselling, including sex-specific counselling, if deemed necessary.

[123] As far as A.'s treatability, he scored very high on the standardized test, which is indicative of a higher degree of readiness to change and participate in treatment services.

[124] A criminogenic needs assessment and risk assessment were conducted. As with the two other boys, he is deemed to be at low risk to reoffend. An areas of identified need concerns peer relationships. Dr. Grimbos writes, "… it will be important for B. to engage in work around appropriate decision-making and asserting himself with peers and in the context of peer pressure, as well as not participating in bullying of others in any capacity."

[125] Using the standardized test to assess the risk of sexual reoffending, the risk was found to be low.

[126] A.'s mother was seen to be supportive of sex-specific treatment. Dr. Grimbos writes that additional work around processing the offences, including the sexual nature of the incidents, is important.

[127] Dr. Grimbos is satisfied that based on A.'s cooperation and the collateral sources of information, she has a good understanding of A.'s functioning and is able to make recommendations. In her opinion, A. is poised to continue seeing his psychotherapist. Identified areas of concern – peer relationships, family stressors, father-son relationship – need to be addressed. Further, A. must process the sexual nature of the offences, sexual boundaries in sports culture and process fully his role in the sexual assaults.

[128] Dr. Grimbos makes the following specific recommendations:

1. That A. continue with his psychotherapist where the above areas of concern are addressed.

2. A. would benefit from a mentorship relationship with an older, positive role-model. PACT Lifeplan Coaching Program is specifically designed for youth in trouble with the law who are motivated towards making positive changes in their lives. Youths in this program are given complimentary memberships to the YMCA where they can put their health and wellness plans into action.

3. Youth Employment Services (YES) could offer A. a case manager to develop a short and long term employment plan.

4. Toronto Sports Leadership program offers opportunities for students to gain skills and provides resources students need to make positive choices and learn the skills to become leaders in their communities.

5. Continued engagement in sport is recommended.

[129] A pre-sentence report was prepared by Nzunaki Tuitt. Ms. Tuitt did a comprehensive social/family history which helpfully supplements Dr. Grimbos' history. Ms. Tuitt identifies the divorce as having a significant an impact on the family, but otherwise A. has enjoyed a stable, loving upbringing.

[130] Ms. Tuitt also refers to Radius Child and Youth Services (see above), and alternatively, suggests Central Toronto Youth Services, which enjoys a close service-provider relationship with Probation services.

[131] It is Ms. Tuitt's recommendation that A. could benefit from further counselling or treatment to address issues such as peer influence, empathy, victim awareness, self- regulation, decision making and trauma/stigma related to the offence. She recommends that the mentioned programs are best positioned to "address the nature of this offence".

The Young Person C.

[132] C. was assessed for the court by Dr. J. Vinik, aided by J. Rizeq. C. was 15 years at the time of the offences and 16 years at the time of this assessment.

[133] As in the two other reports, Dr. Vinik carefully sets out the interviewing timetable, other sources of information (including standardized psychological testing), and collateral reports.

[134] C. lives with his mother and brother. Their relationship is good. Ms. M., C.'s mother, has been unable to work since 2015 because of a medical condition. She receives ODSP to support herself and her family.

[135] C.'s parents separated when he was 5 years old. The biological father's only 'contact' with the family is through his child support payments flowing through the Family Responsibility Office. C.'s early years were marred by abuse, both towards him and his mother, that they suffered at the hands of the father. C. does not recall much about the physical abuse, except that he recalls being beaten twice a week. C. now sees the nature of his father's abusive behaviour and he is bothered by how his mother was treated. He recalls no impact at the time.

[136] After separation, C. originally expressed a wish to see his father, but an access relationship did not develop.

[137] In spite of the family being supported only by disability assistance and child support, no concerns were raised regarding financial hardship.

[138] Mother enjoys the support of her family and has been in a relationship with Mr. S. for the last 10 years. He does not live with them, but the relationship is seen as valuable. Mr. S. appears to be a positive male figure in C.'s life and he is referred to as a 'step-father'. He has participated in all aspects of parenting including discipline.

[139] In addition to the adversity of going through a family breakup, C. has a significant medical history that presented challenges not faced by other children.

[140] C. was diagnosed with epilepsy, the worst period being between ages 2 and 6 years. The seizures decreased, but still played a negative role in terms of both academics and socialization. C. has learned to manage his symptoms and triggers (he still experiences at least 6 seizures a year) and by grade 6 he had caught up academically with his peers and has excelled ever since.

[141] C. has done well in football. However, he has suffered 3 concussions, 2 of which were very serious (at ages 12, 14 and 16). He was forced to give up football for months, due to post-concussion symptoms. He has been advised in the past to give up contact sports completely. The last concussion occurred when C. tried to break up a brawl during a recent game. The coach of the opposing team, according to C., intervened and stomped on his head. C. and his mother now believe this coach is related to one of the victims of the current charges, but this information was not verified. Criminal charges were laid against the coach. Recovery from this concussion took 6 to 8 weeks. C. still suffers from serious headaches every other day.

[142] Dr. Vinik notes that the criminal incidents occurred during a time when C. was described to be completely asymptomatic and his daily functioning was not impacted by post-concussion symptoms.

[143] C. maintains positive relationships with members of his extended family. C. is described by them as a good teenager who is good at following expectations. C. similarly describes himself.

[144] C. has always had positive peer relationships and has always been able to make friends. Of course, many of his relationships were with team-members at SMCS, and these relationships have now been lost.

[145] There are no reports of past socializing with antisocial individuals and no concerns were reported regarding current or previous peers being involved in delinquency. He has no previous contact with the justice system.

[146] C. has been in a romantic relationship with a girl for the past 2 years and it is C.'s mother's view that he treats her well. They are sexually active, but no concerns regarding sexual health or safety were raised. Mother reports having discussed sexual safety with her son.

[147] C. has been working part-time in a grocery store and since June, he has been working as a busboy in a restaurant, as well.

[148] In terms of future planning, C. is interested in accounting, the trades or medicine, but he is clear he would only pursue these if football does not work out. According to Dr. Vinik, he has an insightful and mature view of his very ambitious athletic career plans.

[149] Regarding school, C. started SMSC in grade 9, graduating from primary school with the Principal's Award and he was class valedictorian. SMCS's vice-principal reported no concerns regarding C.'s functioning in the school, and there were no difficulties in learning or behaviour.

[150] C. was expelled from SMCS following the criminal incidents of the fall of 2018. As he lives outside of Toronto, he looked to the local school board for a placement. He attended a transitional program as a prerequisite for returning to the normal stream. Since September, he has been attending a local high school. There are no concerns noted with functioning or behaviour.

[151] C.'s immediate goals include attending a U.S. boarding school where he can also pursue his athletic career. He says that several schools have already expressed an interest and he is supported by his parents in this regard.

[152] The cognitive and academic assessment reports that his cognitive abilities are age-appropriate and that he has the ability to pursue post-secondary studies. His testing did not reveal any learning disabilities and no concerns were raised by the assessment results.

[153] After he was expelled from SMCS, C. engaged the counselling services of East Metro Youth Services. At first, he was not fully open to counselling, but that changed as he became more engaged in the process. He reports that he could see the benefits and started to enjoy it. He was re-directed to Frontenac Youth Services by the school board's transitional program. The thrust of this therapy was to help him manage his feelings of guilt, his mood swings and his irritability, all symptoms being of recent vintage. It is documented that he was well-engaged in the therapeutic process and came to sessions prepared. He now acknowledges that it can be beneficial for him to express his feelings and seek the support of others.

[154] Regarding his current mental health, as with A., C. experienced trauma symptoms after his expulsion and arrest, but seems to have overcome the challenges. Currently, symptoms are in the non-clinical range. Since this matter came to light, according to C.'s mother, he has received many death threats and threats of harm, all of which have been reported to the police. Mother reports that he appeared scared and upset by these threats.

[155] As far as mood and anxiety issues, he has suffered mood issues after the concussions, most notably, irritability. Since the expulsion, he has had low mood, but has no diagnosable disorder at this time. It is noted that on the day he was expelled he did not return home, but went to the train tracks and contemplated jumping. He has not had thoughts of that kind since.

[156] He has no substance or alcohol abuse issues.

[157] There are no concerning anger or aggression issues, and his mother reports no concerns with oppositionality.

[158] C. talked openly to Dr. Vinik about the criminal offences. Regarding the November incident, he described the atmosphere to be high in adrenaline with music, dancing and heightened energy. His teammates were excited to advance to the playoffs. He remembers roughhousing with the victim F. and when the situation escalated to the assault with the broom, he participated. He also admitted to participating in the September incident, but stated that he did this as part of hazing and did not realize the impact it would have on the victim.

[159] As with the two others being sentenced, C. did not think of these behaviours as being that serious at the time and considered them to be "regular hazing that went too far." He reports that he was not intending to hurt or damage anyone and that the victims were not enemies or rivals. Further, it is only since the events that he has begun to appreciate the sexual nature of his behaviour.

[160] As with the two others, C. feels very guilty and takes a lot of the blame for what happened. He could have stopped these events with one word, but he was not able to step up and say "stop".

[161] C.'s perception of the cultural atmosphere at SMCS is that "no one is immune to hazing". He had not previously experienced the hallway behaviours (described earlier) till he came to the school, but when he learned they weren't meant to be hurtful, he saw them as a fun part of the school's culture. He describes it as "regular" behaviour there.

[162] Most of the bullying behaviour he describes seems to relate to sports culture. He reports that they regularly slapped other students on the butt or on their genitals and also shoved fingers between other students' buttock cheeks (over clothing). He did not describe these occurrences as being scary or traumatic. When he was asked specifically about hazing, he reports that as the hazing behaviour on the senior team got more severe, it spread to the junior team. He claims to have witnessed a similar assault with a broom prior to the incidents in front of this court. He reports that things would begin in a joking manner and were not done in anger. He saw these incidents as fun at the time; however, he does not view them that way now. He believes that the coaches at the school were generally aware of the hazing, but likely not of the severity. He specifically asked Dr. Vinik to include the following in her report:

It wasn't meant to be damaging. It was just for hazing and fooling around. It turned into everything it shouldn't have. I am really sorry for what I've done and am willing to face the consequences.

[163] C.'s mother describes what she knows of the incidents to Dr. Vinik in her interviews. It is clear that C. has been forthright with his mother. He was consequenced at home by being grounded for 6 months. Mother also acknowledges that her son 'lost everything' and he felt he deeply disappointed his family. Mother also says the events have made them closer.

[164] In standardized testing, C. scored very low on the antisocial values tests. According to Dr. Vinik, his scores indicate lower antisocial attitudes compared to other youth seen at her clinic.

[165] Regarding sexual interests, all of C.'s sexual experiences have been exclusively heterosexual. Within that history, Dr. Vinik could find no evidence of sexual deviancy or inappropriateness. In short, no specific concerns were noted.

[166] On the treatability tests, used to measure a youth's feeling about his criminal behaviour and willingness to participate in treatment services, C.'s score suggests he is likely committed to change and is open to services.

[167] In the area of criminogenic needs and risk, he was assessed to be a low risk for continued behavioural difficulties. Further, he presents as a youth at low risk for difficulties relating to sexual interactions over the following 12 months.

[168] His criminogenic needs are two: his family circumstances (specifically his relationship with his biological father) and peer relations, given that the offences occurred in the context of peer relationships. Dr. Vinik says that in spite of a history of appropriate peer relationships, work on independent thinking in the context of peer pressure (not being a bystander or participant) would be helpful. Dr. Vinik further notes that although he has engaged treatment already, the sexual nature of the offences has not been addressed.

[169] In her summary, Dr. Vinik reports that C.'s focus during the assessment was on accepting personal responsibility, facing the consequences and learning lessons to inform his future behaviour. He was particularly focussed on the fact that he had the power to stop the events but did not. Dr. Vinik writes,

"… the group dynamic also likely played a role, as everyone was caught up in the excitement of the moment and responsibility for what was happening was diffused…. It is also important to consider that the described culture of sexual bullying in SMCS likely normalized such behaviours, although the severity of the offences appeared to be more serious compared to the daily behaviours described."

[170] Dr. Vinik would like to see C. get counselling/therapy, where the following issues are addressed and discussed: management strategies for negative thoughts and emotions; exploring the offences in more detail with a view to C. accepting full responsibility for his involvement; exploring the sexual nature of the behaviour and the possible implications for the victim; management strategies for peer and group pressure; developing strategies to prevent reoffending; and exploring the issue of social supports and re-establishing social connections.

[171] Dr. Vinik does not believe he requires sexual-offence specific programming. She believes this aspect of his needs can be addressed in the context of general counselling.

[172] C. has already engaged short-term, solution-focussed therapy. He needs steady counselling with one counsellor. Dr. Vinik thinks he would require 15 to 20 sessions. Dr. Vinik suggests several programs, and names a practitioner who has experience working with youth who have sexually offended.

[173] Dr. Vinik has some general recommendations relating to other issues in C.'s life, such as the continued symptoms relating to head injuries. She also encourages him to continue his involvement in athletic activities. If he is interested in mentorship, she has identified a resource.

[174] A presentence report was prepared by Michele Rampino. The family's history as relayed by C. to Ms. Rampino parallels Dr. Vinik's history. However, C. was much more detailed about the sports culture in which he found himself. I quote directly from Ms. Rampino's report:

C. explained that the culture at St. Michael's was not like anything else he had ever experienced. He knew everyone and was very popular within the school. His teammates were like brothers, his family. He described the environment in the locker room as part of the team experience, they would participate in play fighting, "locker dunking', they would pound on each other, fight and wrestle. He experienced it upon himself as well, he was pounded in the chest, beaten and had his chain ripped off during a "brawl". He explained that after a few incidents he fought back and "took down" a bigger older youth so after that they no longer picked him to beat on. He relayed that it was not personal but a part of the team environment. Grade 9 students would be picked on by the Grade 10 students etc. He explained that the behaviour was not mean spirited or personal, there was no ill will and it was not sport performance related. He described that it began to escalate, got worse and worse then started to be directed towards sexual body parts. He explained that there was no sexual gratification or arousal experienced. He explained that afterwards everything would go back to normal and they were all friends. He expressed that it was all just part of being on the team. C. relayed that he did not realize that the behaviour was criminal until he met with the Vice Principal at school. He explained "it was just part of the life there, the way it was."

[175] Ms. Rampiro identifies two available community programs to address his criminogenic needs. One is the Durham Family court Clinic Community Support Team (Murray McKinnon Foundation). The former offers, among other things, sexual offence specific counselling. Ms. Rampiro recommends referrals for sexual offence specific programming and victim impact counselling.

[176] Ms. Rampiro makes recommendations for the components of a community-based disposition, including a weapons prohibition and non-association clauses.

[177] I note here that although the three separate authors could specify custody when making recommendations in the pre-sentence report, all authors focussed on the practical elements of a community-based plan.

Victim Impact

[178] A victim impact statement was filed by the parents of F. He has been having trouble focusing in school and has extreme mood swings and angry bouts. The parents, quite honestly, admit they don't know whether the emotional outbursts relate to developmental issues or the incident or both. In any event, the result is that they feel they are facing challenges in their parenting. They are prepared to forgive the young persons in front of the court, but predict they will never be able to forget the events of last year.

The Law and Its Application

[179] The following provisions in the legislation govern my task. Section 3 is the declaration of principles and declares the policy for Canada with respect to young persons. Section 3 is the lens through which the rest of the act must be viewed.

[180] Section 3(1) — The following principles apply in this Act:

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

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

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

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

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

(i) rehabilitation and reintegration,

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

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

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

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

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

(i) reinforce respect for societal values,

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

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

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

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

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

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

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

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

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[181] Section 38 sets out the purposes and principles of sentencing.

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

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

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

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

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

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

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

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

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

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

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

(i) to denounce unlawful conduct, and

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

Section 38(3) — In determining a youth sentence, the youth justice court shall take into account

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

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

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

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

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

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

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

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

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

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

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

Section 39(2) — If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

Section 39(3) — In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

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

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

Section 39(4) — The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

Section 39(5) — A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

Section 39(6) — Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel.

Section 39(7) — A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary.

Section 39(8) — In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.

Section 39(9) — If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d).

Application of the Sentencing Principles

[182] In general, the act requires the sentencing judge to consider proportionate accountability, rehabilitation and reintegration in determining an appropriate sentence.

a) Accountability

[183] Accountability is one governing principle in the sentencing of young people, as illustrated by s. 3(1) and s. 38 (see R. v. S.(A.), 2013 ONCJ 683, per Bloomenfeld, J.). The scheme of the legislation emphasizes (among other things) "… fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity." Section 38 tells me that the purpose of sentencing is to hold young persons accountable "… 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…". As Justice Bloomenfeld says in S.(A) (supra), "the objective is to hold young persons accountable. The means by which that objective is to be achieved is just sanctions that impose meaningful consequences and promote the young person's rehabilitation and reintegration".

[184] But what does "accountable" mean in this context? Our Court of Appeal in R. v. A.O., 2007 ONCA 11, said the following in this regard:

Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence.

[185] This view of accountability is consistent with the "offender-centric" nature of a youth sentencing decision identified by the Supreme Court of Canada in R. v. P. (B.W.) ; R. v. N. (B.V.), 2006 SCC 27. In that case, the court held that general deterrence is not a factor in youth sentencing. Speaking for the court at para. 33, Charron J. said the following:

In the same way, when the statute speaks of "accountability" or requires that "meaningful consequences" be imposed, the language expressly targets the young offender before the court: "ensure that a young person is subject to meaningful consequences" (s. 3(1)(a)(iii));"accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" (s. 3(1)(b)(ii)); "be meaningful for the individual young person given his or her needs and level of development" (s. 3(1)(c)(iii)). Parliament has made it equally clear in the French version that these principles are offender-centric and not aimed at the general public…

In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C. in R. v. M. (C.A.), at paras. 80 and 81:

Retribution in a criminal context, by contrast, represents an objective, reasoned 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 the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

[186] I read this to mean I must assess the moral culpability of the young person by considering the intentional risk taking of the young person, the consequential harm caused by the young person and the normative character of the young person's conduct.

[187] As illustrated in the reports filed with the court, all of the young persons involved here significantly underappreciated what they were doing. Not only did they misperceive the criminal and sexual nature of the events, but in the moment, thought it was locker room roughhousing that was going too far. Although the assaults could have resulted in physical harm, it is quite clear that these young people did not assess the risk till long after the events, and then only with the help of therapy.

[188] On the child pornography offence, although B. is not charged with distributing, there is always harm that flows from the possibility of distribution once the pornography is produced. I see little to suggest B. adverted to the possibility of ensuing harm in the first video shoot. He destroyed the first recording at the request of the victim. However, he was put on notice at that moment of the potential impact that merely producing a video could have on a victim. In my view, keeping the second video elevates 'intentionality'. However, having said that, I acknowledge that he had no explanation why he did what he did. He certainly did not advert to the possible consequences for the victim at the time.

[189] In mitigation, two things must be acknowledged. First, B. did not go into that locker room with the intention of video filming an incident. It is my understanding of the facts that the identity of the victim was not known till the assaults began.

[190] This spontaneity with which the video recording takes place is consistent with B.'s reports to his assessors.

[191] Second, I cannot discount the normative role smart phones currently play in modern society, about which I take judicial notice. Teenagers, and most of us for that matter, tend to blithely access the cameras on our phones when we see something remarkable (or even mundane, for that matter). There is daily use by media outlets in news broadcasts of so-called 'viral' videos, where ordinary citizens video life around themselves in a cinema verité fashion. This phenomenon is so commonplace that videos have expanded their influence in every day life. I note that the Sandler report identified social media as a forum for bullying (as did Justice Abella in Bragg, above) which is a new and modern role for what was once just a telephone.

[192] It is believable to me that B. automatically and without thinking did what he did, without adverting to consequences or impact on the victim. His video surfaced and he faces charges for it. He may not have been the only videographer in that locker room.

[193] The intentionality of harm existed here for B., but I find it hard to elevate to the level of serious intentional risk taking.

[194] Having regard to the assaults alone, I find that the degree of intentionality of harm is low.

[195] Further, foreseeability of harm is not necessarily established, either. The athletes' code of honour in this school seems to be an impediment to someone coming forward to the school authority. I surmise that the code also invited the boys to act like nothing had happened after the events were over. I do know that all reported during assessment that things went back to normal and everyone resumed being friendly. This state of things fostered, at the time, the mentality among the boys that they weren't involved in anything genuinely harmful.

[196] In my opinion, the evidence supports, at best, a finding that the intentional risk of harm is at the low end of the spectrum.

[197] In terms of consequential harm, I cannot think of a useful purpose in retaining a video such as the one made in this case. In the absence of direct evidence about the emotional harm done to the victims, I rely on the Supreme Court in A.B. v. Bragg Communications Inc., 2012 SCC 46, where Justice Abella writes,

… in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament.

Given the ages of the victims, I will assume that an event such as group sexual assault can have lasting traumatic impact on them. For the second victim, the second video possibly still exists on someone's phone. The victim will have to live knowing that it is a possibility that it could re-surface in the future.

[198] In terms of the normative character of the conduct, as I have articulated earlier in this judgement, I am satisfied that the cultural milieu in which these boys found themselves played a role. The culture does not excuse or absolve of responsibility, but it set a stage for something serious to happen.

[199] In all the circumstances, I conclude by finding that the moral culpability for the three young people is diminished from that which one would normally assess in a fact situation involving a group sexual assault by adults, where the event was video recorded. In all the circumstances, I find that the limits of fair and proportionate accountability are not confined to the consideration of a custodial sentence only; the complete range of sentences is available to me, in spite of the seriousness of the offences.

b) Parity

[200] The legislation directs me to fashion a sentence that is similar to the sentences imposed in the region on similar young persons found guilty of the same offences committed in similar circumstances.

[201] This is a very unique case; I could find no caselaw with similar facts. The only other example is the case of D., who I sentenced on June 26, 2019. I sentenced D. to a community-based disposition and community service hours. His degree of participation was comparable to the three in front of me today. Unless I find dissimilar rehabilitative potential between the boys, and I do not, this principle militates in favour of a community disposition for all.

c) Proportionality

[202] The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence. As Justice Bloomenfeld points out in S.(A.) (supra), the determination of proportionality is intrinsically linked to the gravity of the offence and the moral culpability of each young person.

[203] As I said earlier, I regard these offences as being very serious. They involve a pack assault on a vulnerable victim. A video was made.

[204] I am satisfied that diminished moral culpability is established. In addition to what I have said above, there are additional factors that inform this concept of diminished personal culpability. As the psychologists pointed out, the blame for what was taking place in the locker room was diffused by the number of boys participating, either as direct perpetrators or as the cheering squad. The fact this was a group offence is aggravating when looked at from the point of view of the victims. However, from the point of view of the perpetrators, this would never have happened without the group dynamic.

[205] Additionally, all three of the young persons here (and D.), reported a further peer dynamic that informed their participation: they didn't want to be next.

[206] In my view, all these factors reinforce the notion that the complete spectrum of sentencing options is available in this case.

d) Reasonable Sanctions

[207] All available sanctions other than custody must be considered that are reasonable in the circumstances. Put another way, would a community disposition be an unreasonable sanction? Within the application of this principle, the least restrictive sanction is preferred.

[208] None of these boys has had any prior contact with the criminal justice system. None of them breached the conditions of release. All are decent students, and until this event, had clean school records. All function cognitively such that they are candidates for post-secondary education. They are remorseful, ashamed, gaining insight, and all have been designated commendable candidates for targeted therapy or counselling in the community. All are at low risk to re-commit a similar offence, or any other type of offence, for that matter. All have decided to take responsibility for their actions. All have supportive families who say the boys are engaged family members. All have ambitious plans for themselves for the future. All boys acknowledge that harm was done to the victims. No one has breached the conditions of their release or committed further offences.

[209] Put bluntly, there is nothing about these young persons as individuals that would militate in favour of a custodial disposition. In my view, there are reasonable sanctions other than custody.

e) Rehabilitation and Reintegration

[210] The psychological assessments lead me to conclude that all three boys are excellent candidates for rehabilitation. All have engaged in therapy. All have been assessed to be suitable for further therapy which should yield results. All are coming to understand the nature of the offences. All are learning to look at the incidents from the point of view of the victims. All have stable, supportive families. All are intelligent, having few impediments in the way of further education.

[211] Areas of criminogenic risk have been identified and resources to deal with these risks have been recommended.

f) Discretionary Use of Denunciation and Offender Deterrence

[212] Because the discretionary principles of denunciation and specific deterrence are available and urged upon this Court, I emphasize the following. Seldom, or never, have I had three separate young persons, being assessed by three different psychologists, not only express remorse for what they have done (which is understandably common), but moreover, for what they did not do. Each realizes that he had a chance to stop what was happening but did not and that realization informs the deep nature of the remorse they each have exhibited throughout this proceeding. This insight alone, coupled with the very positive risk assessment, convinces me that there is no need for specific deterrence in this case. There is no evidence of a predilection for this type of behaviour.

[213] The notion of denunciation is more complex. The sentence I craft may have denunciation as an objective. It is discretionary but is not intended to be a trump card for the many other principles that are to be brought to bear. As Mr. J. Herauf said in R v P.R., 2018 SKCA 27 at p.75:

In my view, the YCJA establishes a sentencing philosophy that promotes meaningful consequences and ensures accountability through rehabilitation and reintegration methods, as opposed to focusing on denunciation and deterrence to impose custodial sentences. Although denunciation and deterrence may be considered in determining the appropriate sentence for a youth offender, they must not be the sole objectives considered and they must not take paramountcy over the other sentencing principles contained in the YCJA.

[214] Denunciation is a different concept than its adult counterpart, general deterrence. Our Court of Appeal has made this clear (A.(O.) supra). In my view, denunciation is available to the court to ensure that a sentence communicate society's condemnation of the conduct. However, sentences other than custodial sentences can so express. In R. v. Proulx, 2000 SCC 5, the Supreme Court found that the community based 'conditional sentence' could adequately address the need for denunciation.

[215] In my view, the discretionary application of denunciation, if applied, must also be applied in a manner consistent with the principle of diminished moral capacity or culpability.

[216] I bear in mind that I have had to consider denunciation in the analysis or application of other sentencing principles. For example, I must set measures that reinforce respect for societal values (ss.3(1) (c)). Thus, the proper application of this principle will import an aspect of denunciation.

[217] In this case, denunciation can be expressed in ways other than by incarceration. First, the voice of the community has been clear. These boys were expelled from their school. All faced challenges to get into new schooling. One boy faced threats. The boys are all keenly aware of the stress and shame brought on their families. These boys have faced serious criminal charges and been the object of intense media scrutiny. Every court appearance they have made, to get into the courthouse their families have had to run a gauntlet of media vans. In spite of the fact that we actually have other serious charges to deal with in this building, the media has decided this is the case that requires society's focus. That fact has added to the shame the boys are feeling.

[218] I think it is safe to conclude that these young persons have heard society's voice loud and clear.

[219] Allowing the discretionary objective of denunciatory incarceration to outweigh all the other factors in the balancing that must be done, would be nothing more than a result-oriented stratagem that side-steps sentencing principles whose historical purpose is to limit custodial sanctions for young persons.

[220] In my view the least restrictive sentence that is capable of achieving the stated purpose of sentencing is a community disposition for all three young persons.

Sentencing Decision

[221] I am placing you all on probation for 2 years with the following conditions:

1. Report today and as required to an officer assigned by the Provincial Director. You will appear before this Court if required to do so.

2. Keep the peace and be of good behaviour.

3. Have no contact, directly or indirectly, with the named complainants or your named co-accused. An exception to this contact prohibition would be if the contact is done for a purpose consistent with the Education Act.

4. You will attend for any counselling, treatment or education as directed by your Probation Officer, or any case manager who has been delegated the responsibility of securing and supervising a community plan for you in accordance with the recommendations made in the section 34 reports. In creating this therapeutic plan, I would ask the Provincial Director to consult directly with the authors of the section 34 reports. To this end, those reports are ordered released to the Provincial Director. The Provincial Director may, in turn, release the reports to any person actively engaged in providing or managing services for you in the community. Any further dissemination of the reports is subject to the privacy provisions of the Youth Criminal Justice Act.

5. I am prohibiting you from owning any weapons pursuant to section 51 of the Criminal Code for two years.

6. You will not have in your possession anything that could be defined as a weapon in the Criminal Code, except for the purposes of employment, education, or a culinary purpose.

[222] In addition, I am imposing a community service order of 30 hours to be completed within one year.

[223] This is a mandatory DNA order offence, and I am so ordering.

[224] As I said above, all three boys have indicated the remorse they feel, not only for participating, but for not intervening. They will have an opportunity, I believe, to intervene in the future. I believe they will all pursue athletics. It is predictable that they will see bullying and hazing again. The rituals of males on sporting teams will hardly be eradicated simply because of the media's attention in this particular case.

[225] I say this directly to the three young persons. When you encounter bullying or hazing again, I take you at your word that you will call it out to the perpetrators and your peers. Your message has to be: it is always wrong for older, stronger or more senior males to sexually humiliate, bully, or assault their more vulnerable colleagues, particularly when the behaviour masquerades under the guise of acceptable male sports culture.

Released on: December 19, 2019

Justice B. Weagant

Addendum

After counsel for the Crown and the young persons had an opportunity to read the written reasons, I heard further submissions as to the terms of the probation. The following are the terms:

1. Report today and as required to a probation officer assigned by the Provincial Director.

2. Keep the peace and be of good behavior.

3. You will have no contact with the victims in this matter, either directly or indirectly, except through counsel, or for mandatory court appearances.

4. You will have no contact, directly or indirectly, with the named co-accused as set out on Information Y190126, except for a purpose consistent with the Education Act, through counsel, or if you are involved in a sporting event organized under the auspices of the Ontario Provincial Football League or the Ontario Varsity Football League.

5. You will have no contact, directly or indirectly, with and member of the SMCS junior football team of 2018, except for a purpose consistent with the Education Act. Further, you will have no contact with any current members of the junior or senior SMCS football team, except for a purpose consistent with the Education Act, through counsel, or if you are involved in a sporting event organized under the auspices of the Ontario Provincial Football League or the Ontario Varsity Football League.

6. You will attend for any counselling, treatment or education as directed by your Probation Officer, or any case manager who has been delegated the responsibility of securing and supervising a community plan for you in accordance with the recommendations made in the section 34 reports. The treatment plan should contain programming that addresses victim empathy, sexual boundaries and consent, and social media/sexting/child pornography. You will sign consents to enable the Provincial Director to monitor attendance or compliance with the program. In creating a therapeutic plan, I ask the Provincial Director to consult directly with the authors of the section 34 reports. To this end, those reports are ordered released to the Provincial Director. The Provincial Director may, in turn, release the reports to any person actively engaged in providing or managing services for you in the community. Any further dissemination of the reports is subject to the privacy provisions of the Youth Criminal Justice Act.

7. You will not have in your possession anything that could be defined as a weapon in the Criminal Code, except for the purposes of employment, education, or for a culinary purpose.

I am making a weapons prohibition order for 5 years, for all three young persons, pursuant to section 51 of the Criminal Code.

I am making a DNA order on both the assault with a weapon charge and the sexual assault with a weapon charge.