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:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.
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:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
ONTARIO COURT OF JUSTICE
DATE: 2021 03 01 COURT FILE No.: Toronto 19-Y190177
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J.J., a young person
Before: Justice Alex Finlayson
Submissions Respecting Sentencing Heard on: November 9 and 25, and December 8, 2020 Reasons for Judgment Respecting Sentencing Released on: March 1, 2021
Counsel: Sarah De Filippis................................................................................ counsel for the Crown Joanne Prince.......................................................................... counsel for the accused J.J.
ALEX FINLAYSON J.:
PART I: NATURE OF THIS JUDGMENT
[1] On various dates in 2019 and 2020, I presided over a Youth Court trial in this matter. I found J.J. guilty of one count of sexual assault with a weapon contrary to section 272(1)(a) of the Criminal Code, of one count of being a party to a sexual assault contrary to section 272(1)(d) of the Criminal Code, and of one count of sexual assault contrary to section 271 of the Criminal Code. The finding of guilt for the sexual assault was stayed at the request of the Crown, based on R. v. Kienapple.
[2] For sentencing, both the Crown and the defence rely on an assessment and a cognitive and academic assessment, prepared pursuant to section 34 of the Youth Criminal Justice Act, and a pre-sentence report. The Crown tendered victim impact statements from the victim, A.G., and from her mother. Both sides supplied the Court with case law and made oral submissions.
[3] Between the time the Court found J.J. guilty and the sentencing hearing, J.J. turned 20 years old. After hearing the submissions respecting sentence on November 9, 2020, the Court invited the parties to call additional evidence about the conditions of incarceration that J.J. would experience, and about the services that would be offered to J.J. in a facility, were the Court to impose a custodial sentence upon him. The Court invited that evidence, as J.J. would serve any custodial sentence in an adult facility, by operation of section 89 of the YCJA. And the Court invited that evidence because J.J. has a number of needs which have been identified in the section 34 reports. It was unclear to the Court exactly how the adult institution would address his identified needs, if at all.
[4] At the further attendance, the Crown arranged for probation officer, Tyler Heffernan to give viva voce evidence. With the consent of the defence, the Crown also advised the Court of other information that she had obtained via phone calls with two other persons working in corrections. Counsel for the defence agreed that the Crown could inform the Court about the contents of her inquiries, without the need for either of those two other persons to attend Court and testify.
[5] This matter was scheduled for February 19, 2021 for the release of this Judgment. However, J.J. did not appear. After discussions with counsel that day about how best to secure J.J.’s attendance, the matter was put over until March 1, 2021.
PART II: THE PARTIES’ POSITIONS
[6] When the Court first heard the submissions respecting J.J.’s sentence on November 9, 2020, the Crown took the position that the Court should impose 15 months of custody and supervision, followed by 9 months of probation. The Crown initially advised the Court that she would have sought a lengthier custodial sentence of 18 months, but for the collateral consequences of being incarcerated during the Covid-19 pandemic.
[7] The Crown would have been content for J.J. to serve the custodial portion of the sentence in open custody. However, given J.J.’s age, that is not a possibility under the statute.
[8] After having heard from Mr. Heffernan and the others working in corrections with whom the Crown spoke, the Crown modified her position as to the length of the sentence. The Crown now takes the position that there should be a custody and supervision order of 12 months. And if those in the adult facility do not address J.J.’s needs and plan appropriately for his rehabilitation and reintegration into Society, then the Crown concedes that the Court could review J.J.’s youth sentence under section 94(4) of the YCJA. The Crown even submitted that the Court consider setting a sentence review date at this time, to occur in 30 to 60 days. But given the circumstances of this case, there should still be a custody and supervision order nonetheless according to the Crown, notwithstanding the evidence about the adult facility.
[9] The Crown also seeks a 5-year weapons prohibition order and a DNA order.
[10] The defence suggests a sentence of 3 to 6 months of custody and supervision, followed by probation. The defence did not make any submissions about the weapons prohibition or the DNA order, nor did counsel take issue with any of the terms and conditions proposed by the Crown for any periods of community supervision.
PART III: APPLICABLE LEGAL PRINCIPLES
A. J.J. Is to Receive a Youth Sentence Under the YCJA
[11] Although he is now 20 years old, J.J. committed these offences as a young person. He did so with T.D. (and others). Unlike J.J., T.D. was 19 at the time. He was sentenced as an adult under the Criminal Code by Justice R. Maxwell on September 22, 2020. T.D. received a custodial sentence of 18 months, 2 years of probation, and Maxwell J. imposed other ancillary orders.
[12] Unlike J.J., T.D. pleaded guilty. Maxwell J. found that there were “significant mitigating factors” in T.D.’s case, including that by pleading guilty, T.D. did not require A.G. to endure the experience of testifying.
[13] During the submissions respecting sentencing in this case before me, I asked J.J. if he wanted to address the Court. He neither took the opportunity to apologize, nor to express any remorse or empathy towards A.G. Instead, he wanted to remind the Court that he was to be sentenced as a young person.
[14] As a young person, J.J. will be differently sentenced according to the principles in the YCJA, as opposed to his former friend T.D., who was sentenced as an adult under the Criminal Code. This is something that was never in debate. In fact, this Court went to some additional lengths, initially on its own initiative, to ensure that it had before it the necessary evidence to give J.J. the full benefit of the sentencing principles of the YCJA.
[15] As Abella J. said in R. v. D.B., 2008 SCC 25, [2008] 2 SCR 3 at ¶ 1, “[y]oung people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.” Because of their age, young people have “heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability”. This presumption warrants the unique approach to punishment in the YCJA. See R. v. D.B. at ¶ 41.
[16] This presumption of diminished moral blameworthiness or culpability is a principle of fundamental justice recognized by section 7 of the Charter of Rights and Freedoms. It is also a legal principle that finds expression in the United Nations Convention on the Rights of the Child. See R. v. D.B. at ¶ 60, 68-69. And it is a principle that was incorporated into text of the YCJA after R. v. D.B., in its preamble. Other principles recognized in the preamble of the YCJA include that:
(a) Members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;
(b) Communities, families, parents and others concerned with the development of young persons should, through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes; and
(c) Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons.
[17] The YCJA’s declaration of principle in section 3 sets out Canada’s policy with respect to young persons. This policy informs the sentence that I must impose in this case. The germane portions of section 3(1) read:
Policy for Canada with respect to young persons
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,
(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of your 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.
[18] Although J.J. is being sentenced as a young person, that does not mean that a custody and supervision order is not an available sentence, as J.J. seemed to have been suggesting in his statement to the Court. And although the YCJA promotes restraint and limits the circumstances under which a custodial sentence may be imposed on a young person, it is my view that in this case, a custody and supervision order is the only sentence that will properly hold him accountable and address the sentencing principles that I must apply.
[19] However, on the other hand, J.J.’s age does not obviate the responsibility of which ever adult facility he is placed in to address his needs. It must implement his sentence in a manner that is in keeping with the policy and principles of the YCJA. I will say more about this below.
B. Specific Sentencing Principles
[20] Section 38 of the YCJA sets out the specific sentencing principles that I am to consider and apply.
[21] Pursuant to section 38(1), the purpose of sentencing is to hold J.J. accountable for the offence that I have found him guilty of, through the imposition of just sanctions that have meaningful consequences for him, and that promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
[22] Pursuant to section 38(2), I am to determine the sentence in accordance with the principles set out in section 3 that I have highlighted above. In addition:
(a) The sentence must not result in punishment that is greater than that which would be appropriate for an adult 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) I must consider all available sanctions other than custody that are reasonable in the circumstances;
(e) The sentence must be the least restrictive that is capable of holding J.J. accountable through the imposition of just sanctions that have meaningful consequences and that promotes his rehabilitation and reintegration into society, that is the most likely to rehabilitation and reintegrate J.J. into society, and that promotes a sense of responsibility into him and acknowledges the harm done to victims and the community; and
(f) Subject to the proportionality principle and recognizing J.J.’s degree of responsibility, the sentence may also denounce unlawful conduct and deter him from committing offences.
[23] Pursuant to section 38(2)(e.1), any condition that the Court attaches to J.J.’s sentence may only be imposed if it is necessary to hold J.J. accountable through the imposition of just sanctions that have meaningful consequences and that promotes his rehabilitation and reintegration into society, if J.J. will reasonably be able to comply with the condition, and the condition cannot be used as a substitute for appropriate child protection, mental health or other social measures.
[24] Finally, pursuant to section 38(3), I must take into account a number of factors. Those are:
(a) J.J.’s degree of participation in the commission of the offence;
(b) the harm done to any victims and whether it was intentional or reasonably foreseeable;
(c) any reparation made by J.J. to the victim or the community;
(d) the time J.J. has already spent in detention as a result of the offence; any previous findings of guilt;
(e) any previous findings of guilt; and
(f) any other aggravating and mitigating circumstances related to J.J. or the offence that are relevant to the purpose and principles set out in section 38.
C. Specific Statutory Provisions Relating to a Custodial Sentence
[25] Pursuant to section 39(1) of the YCJA, J.J. may not receive a custodial sentence unless one of four circumstances are engaged. One of those is where the young person has committed a violent offence. See section 39(1)(a). It is patently obvious that this section is engaged in this case. A custodial sentence would also be available under section 39(1)(d), too.
[26] Pursuant to section 39(2), this Court must not impose a custodial sentence for a violent offence under section 39(1)(a), unless it has considered all alternatives to custody, raised at the sentencing hearing, that are reasonable in the circumstances, and unless it has determined that there is not a reasonable alternative, or combination of alternatives, that accord with the purpose and principles set out in section 38.
[27] But in this case, neither the Crown nor the defence even suggested during submissions that there should be a non-custodial sentence. Regardless, pursuant to sections 38(1)(d) and (e), I have nevertheless considered, and rejected, the prospect of a non-custodial sentence for reasons that I will explain.
[28] And had a custodial sentence been sought under section 39(1)(d), I would have found that 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 in any event.
[29] As there will be a custodial sentence, then pursuant to section 39(8), in determining its length, I must also be guided by the purpose and principles set out in section 38. I am not to take into account that the supervision portion of the sentence may not be served in custody, nor that the sentence may be reviewed under section 94. I will discuss the import of the latter in more detail later in these reasons when I make comments about the adult facility in which J.J. will serve his sentence.
D. Case Law Concerning the Type and Length of Sentences
[30] Counsel supplied the Court with a number of decisions on various points. Insofar as the type and the length of the sentence that I am to impose are concerned, the cases are helpful in that the sentence in this case must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence, committed in similar circumstances. See again section 38(2)(b) of the YCJA. That said, I do acknowledge that the decisions are from other regions. Each case has its own facts. And, it must always be remembered that the sentencing of young persons under the YCJA is an individualized process. See R. v. K.S., 2009 NCCA 46 ¶ 46(i); see also R. v. O. (A.), 2007 ONCA 144 ¶ 43.
[31] The most analogous decision that I was given is R. v. M.M., 2017 ABPC 268, a case supplied by the Crown in its Book of Authorities. In R. v. M.M., the Court sentenced the young person to a 12 months’ custody and supervision order, followed by 12 months of probation, following a guilty plea to a single count of sexual assault. The facts were that the young person and his friend had engaged in some consensual sexual activity with the victim. However, during that sexual activity, the young person proceeded to insert an electric toothbrush into the victim’s vagina. The sexual activity became not consensual at this point. The young person recorded himself doing this on his cell phone.
[32] The other person proceeded to punch and slap the victim in her vagina several times, while the young person encouraged his friend’s behaviour, and made degrading comments to the victim. This too was recorded by the cell phone.
[33] At ¶ 10 and 11 of R. v. M.M., the Court said the following:
[10] The involvement of two or more persons in a sexual assault (sometimes regarded as a gang rape) is regarded as more serious than one person acting alone. Sexual assault is a crime of violence. The factors of this case include acts of extreme violence, over and above the foundational violence of the crime of sexual assault. Further, aggravating is the use of the toothbrush as a weapon. The facts also illustrate that the young person engaged in acts and used words to inflict additional humiliation and degradation upon the victim. This is discussed further when I review my findings on the videotaped evidence.
[11] A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not serious physical injury occurs. The harm might come from the force threatened or used or from the sexual aspect of the situation or from any combination of the two.
[34] The Court in R. v. M.M. had before it a section 34 report and a pre-sentence report, just as I do in this case before me. The section 34 report in R. v. M.M. concluded that the young person presented a moderate degree of risk for reoffending sexually. But to the author of the report, the young person suggested that the victim was partially responsible for the sexual assault, and he did not express empathy for her, although he expressed regret for his role in the offence and how it impacted his own life and family. The Court found that the young person minimized the offence and his involvement in it, the young person and his mother blamed the victim, and the young person denied some of the facts to which he had previously agreed at the guilty plea.
[35] I would also rely on the New Brunswick Court of Appeal’s comments in R. v. K.G.B. and S.R.B., 2005 NBCA 96 at ¶ 52-56. R. v. K.G.B. and S.R.B. concerned an appeal of two probationary sentences, which included strict conditions akin to house arrest, that had been imposed on two young persons who had sexually assaulted an intoxicated, 15 year-old girl. One of the errors that the New Brunswick Court of Appeal corrected concerned the youth court’s failure to apply correctly section 39(1)(d) of the YCJA. Nevertheless, and although I find a custodial sentence is available under section 39(1)(a) in this case before me (as opposed to deciding the case under section 39(1)(d)), at ¶ 52, the Court of Appeal said the following about the nature of sexual assaults:
[52] What is evident from the wording of [sections 39(1) and (2) as they then existed] is that Parliament contemplated cases where the circumstances of the offence could be such that a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38. Thus, the legislator recognized that in some circumstances, custody is the only just sanction that will hold a youth accountable for the offence committed, that will have meaningful consequences and that will promote the youth’s rehabilitation and reintegration into society. The premeditated rape of a defenceless 15-year-old girl, as occurred in this case, is one of these offences.
PART IV: ANALYSIS
A. The Circumstances of the Offence
[36] The circumstances of this offence are very serious, and they are violent.
[37] Following a trial, this Court found that on May 20, 2018, the victim, A.G., and her two friends, decided to throw a party at A.G.’s home. J.J. was one of the male party goers. A.G. consumed quite a bit of alcohol and marijuana that evening. In the early morning hours of Sunday, May 20, 2018, A.G. went upstairs to go to bed.
[38] J.J. went up to her bedroom twice after that, accompanied by two different groups of males. A.G. was sexually assaulted more than once that evening.
[39] During the first trip the bedroom, J.J. inserted his fingers into A.G.’s vagina while others engaged in other sexual activity with her. J.J. claimed that A.G. consented to him touching her in this fashion, or that he mistakenly believed that A.G. had communicated her consent. I rejected his assertions about consent and his belief in consent for the reasons set out in my Judgment of March 11, 2020.
[40] During the second trip to the bedroom, J.J. touched her vagina while T.D. inserted a hairbrush into it. A.G. lay motionless on her side. In cross-examination, J.J. said that he found this to have been “funny”, and he admitted that A.G. did not know what was going on.
[41] Portions of these incidents were captured on video. The videos are graphic and degrading to A.G. At ¶ 142-161 of the Reasons for Judgment dated March 11, 2020, I described the contents of the videos, and the evidence about them in some detail. I do not intend to repeat that again here.
[42] In between the first and second trips to the bedroom, some of the videos were played in the kitchen of A.G.’s house, for the amusement of those who watched. J.J. admitted in cross-examination that he found this funny, too. J.J. was even the videographer of a video made during the second trip to the bedroom. That video in particular, is a very degrading, close-up video of J.J. and T.D. participating in inserting fingers and a hairbrush into A.G. J.J. and T.D. can be heard on some of the videos laughing. Some of the videos were later disseminated to others.
[43] A.G. underwent a sexual assault examination at the hospital. She sustained a number of injuries, including lacerations near her cervix.
[44] J.J. was a participant in two sexual assaults of A.G. He was a principal participant in his sexual assault of her during the first trip to the bedroom. That finding of guilt was the one that was stayed. He was an equal participant during the second trip to the bedroom. His conduct, along with the conduct of others that evening, violated the personal autonomy, bodily integrity, sexual integrity and dignity of A.G. His behaviour caused A.G. physical harm, and as I will explain, much emotional harm.
[45] J.J. exhibited a profound lack of respect for A.G., who is a young woman. He participated with others to take advantage of A.G. in this way, while she was in a heavily intoxicated state. The assaults occurred in A.G.’s own home, a place that ought to have been a safe space for her. He thought it was funny. And videos of this exist, which were later replayed and disseminated in a humiliating way.
B. J.J.’s Lack of Remorse
[46] J.J. has shown little insight into his conduct. To the authors of the section 34 assessment, J.J. maintained that he got caught up in the “hype” of the party atmosphere that night. He also persisted in claiming that A.G. was interested in engaging in sexual activity with multiple partners, and that she specifically consented to him touching her.
[47] In regards to the second trip to the bedroom, and despite his admission to the contrary during the trial and the Court’s findings, J.J. said that A.G. was conscious and responsive before the sexual activity. He claimed that her alertness was not captured on the video that had been taken. He also maintained that it was T.D. who played the primary role in the second assault, and he minimized his own involvement. Specifically, he said he was involved in the “least serious” of the behaviours that night.
[48] J.J. did acknowledge that the distribution of the video was wrong and likely upsetting to A.G. Yet, although he was even a videographer at one point that evening, he nevertheless minimized his role here too, highlighting that he played no part in deciding to distribute the videos. He does not seem to recognize or even realize that the fact that these videos were created in the first place, allowed for their later dissemination. I also note again that he participated in the viewing of some videos in the kitchen between the first and second trips to the bedroom, and laughed along with others.
[49] J.J. has some regrets, but they have little to do with A.G. He regrets having ever attended the party and said that his behaviour was wrong. However, he said this to the authors of the section 34 assessment while at the same time maintaining that A.G. consented. J.J. also claimed (as was suggested by the defence during the trial), that A.G. only came forward to “press charges” because her boyfriend saw the videos. I addressed that allegation fully at ¶ 216-232 of the Reasons for Judgment dated March 11, 2020.
[50] J.J.’s sister, with whom he has a close relationship, is enabling J.J.’s continued denials and minimizing behaviours. She was an active participant during J.J.’s assessment, and expressed that J.J. was found guilty of “things he didn’t’ do” and that he didn’t’ have a “fair case”.
[51] The expression of remorse may be a mitigating factor. I accept that its absence is not an aggravating factor. See R. v. Ellacott, 2017 ONCA 681 ¶ 26. The above will not result in any greater punishment to J.J. But the expression of remorse by J.J. is very clearly not a mitigating factor in this case.
C. The Impact Upon A.G. and Her Family
[52] Unlike in T.D.’s case, J.J. did not plead guilty. A.G. had to endure the experience of testifying in this horrible case.
[53] A.G.’s victim impact statement, now before the Court on sentencing, is persuasive. A.G. described her attendance at the hospital for the sexual assault examination as “invasive, uncomfortable and degrading”. She found follow up appointments to have been physically and emotionally difficult. After the assaults, A.G. found it difficult to live in her home. She had difficultly going upstairs, the location where the incident took place. She lost ties that she had with her former friends. She was uncomfortable going to school, as others knew about the situation. She had to complete high school at home, with the assistance of a tutor. She did not even want to attend her graduation ceremony, although she was ultimately able to do so, with the support of her family.
[54] A.G. enrolled in, but left college, after learning that one of young males in attendance at the party that night, was also attending the same college. A.G.’s doctor recommended that she also take a sick leave from work. A.G. remains fearful and uncomfortable when out in the community, and she now has difficulty trusting others.
[55] Similarly, A.G.’s mother says that the family home became unbearable to live in. Even A.G.’s mother went on a work leave, because of emotional and physical stress. The family has suffered financially as a result. This was occasioned not only from A.G.’s mother leaving her job, but when the family saw fit to throw out some of the bedroom furniture on which the assaults occurred.
D. J.J.’s Circumstances
[56] J.J.’s sentencing must be an individualized process. Therefore, the above will be weighed along side J.J.’s circumstances.
[57] First, this is J.J.’s first finding of guilt.
[58] Second, J.J. has been on bail for a lengthy period of time. While his bail conditions were not particularly onerous, he has been compliant. I consider this to be somewhat mitigating.
[59] Third, J.J. disassociated himself from those at the party that night. To the authors of the section 34 report, he has expressed prosocial attitudes more generally.
[60] And fourth, according to the reports before the Court, J.J. has had a difficult past life. J.J. comes from a country in the Caribbean. His mother left him behind when he was 6 months old, to come to Canada. J.J. was raised by his grandmother until he was about 8 or 9 years old. He then came to Canada to live with his mother.
[61] J.J. does not have a particularly close relationship with his mother, or with his step-father. He enjoys no relationship at all with his biological father. J.J. spent some time in the care of a children’s aid society after coming here.
[62] J.J. did not perform particularly well academically in elementary school or in high school. His grades were mostly C’s or D’s, between grades 4 and 8. There were also attendance issues.
[63] In 2013, a request was made by the school for a psychoeducational assessment. But J.J.’s mother did not attend a relevant school meeting and the request could not move forward.
[64] In high school, a request was made for social work services, but it was not followed up with either, by the adults in J.J.’s life.
[65] In 2019, J.J. was demitted from high school due to his lack of attendance.
[66] J.J. has been diagnosed with a specific learning disorder with impairment in reading comprehension, written expression and mathematics. He has a diagnosis of unspecified trauma and stressor related disorder. He uses marijuana and meets the criteria of a cannabis use disorder.
[67] I have taken these mitigating circumstances (ie. first finding of guilt, compliance on bail and J.J.’s disassociation from the other party goers), and J.J.’s past life circumstances, into account. But despite the factors, they are not significantly mitigating when considered in light of his actions and the harm done to A.G., harm of the kind that was reasonably foreseeable. It is my view that a proper balancing of these factors and the principles of the YCJA is such that a custody and supervision order is the only sentence that will properly hold J.J. accountable.
E. The Impact of J.J. Serving His Custodial Sentence in An Adult Facility
[68] Ordinarily, when this Court commits a young person to custody, it must make a determination about the level of custody pursuant to sections 85 and 88 of the YCJA.
[69] Section 24.1(4) of the Young Offenders Act, which is incorporated into the YCJA as a result of section 88, says that in deciding whether a young person shall be placed in open custody or secure custody, the Court should place the young person in a level of custody involving the least degree of restraint, having regard to the seriousness of the offence and the circumstances in which the offence was committed, the young person’s needs and circumstances, including his proximity to family, school, employment and support services, the safety of other young persons in custody, and the interests of society.
[70] The Court is also to take into account that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person, the likelihood of escape if the placement is in open custody, and the recommendations of the youth court or the provincial director, as the case may be.
[71] The Crown submitted that open custody would have been appropriate, but for J.J.’s age. However, as J.J. is now 20 years old at the time of sentencing, section 89(1) applies. It reads:
When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (q) or (r), the young person shall, despite section 85, be committed to a provincial correctional facility for adults to serve the youth sentence.
[72] Nevertheless, J.J. is still to receive the benefit of the provisions of the YCJA, notwithstanding section 89(1). The Crown helpfully supplied me with a decision of this Court in R. v. K.(C.), 2008 ONCJ 236. At ¶24-26 of that case, Duncan J. held just that. Specifically at ¶ 26, Duncan J. said:
The relevant principles of youth justice include: that the youth criminal justice system must emphasize both rehabilitation and accountability; that sentences imposed must hold the offender accountable and promote his rehabilitation; that programs must be available to youth in custody to assist in rehabilitation; that custody must be safe, fair and humane and be the least restrictive consistent with public safety: (YCJA sections 3, 38, 83). Therefore, as applied to all youth, including transferred youth, it is not acceptable to subject them to unnecessarily strict confinement; it is not acceptable for custody to consist of little more than warehousing; it is not acceptable to provide phantom programs, touted as available yet in reality being non-existent, practically inaccessible or available only at someone’s discretion.
[73] I agree with his analysis. I also note that portions of Duncan J.’s decision were referred to extensively by the Manitoba Court of Appeal in R. v. A.A.Z., 2013 MBCA 50. See for example ¶ 125 of that decision.
F. How J.J. Will Be Dealt With By the Adult Facility, In Reality
[74] In some respects, J.J. will receive the benefits of the YCJA in an adult facility. For example, pursuant to section 6(7.2) of the Prisons and Reformatories Act, R.S.C. 1985, c. P-20, when a prisoner who was sentenced to custody under paragraph 42(2)(n) of the YCJA is committed to imprisonment under section 89, he is entitled to be released on the date on which the custody portion of his or her youth sentence under paragraph 42(2)(n) expires. In other words, J.J. is still entitled to serve one-third of his custodial sentence in the community.
[75] As well, sections 7 through 7.4 of the Prisons and Reformatories Act make provision for J.J. to potentially obtain temporary absences from the facility, for a purpose like facilitating his rehabilitation or reintegration into the community. See for example section 7.3(1)(b). Theoretically therefore, the adult facilitation could make provision for J.J. to attend programming in the community to redress the situation if programs do not exist or if they are inaccessible.
[76] And another way in which J.J. receives the benefit of the provisions of the YCJA, is that J.J.’s youth sentence remains subject to the review provisions in section 94.
[77] But the extent to which an adult facility will actually work with J.J. in furtherance of the policies and principles of the YCJA in the same was as a youth facility would, is another matter. And it is here where the additional evidence that the Court heard causes the Court some concern of the kind identified by Duncan J. in the aforementioned passage from ¶ 26 of R. v. K.(C.).
[78] Mr. Heffernan is a probation officer who regularly works with young persons who appear in this Court. He also maintains a case load through the Central Toronto Youth Justice Probation Office. Mr. Heffernan has worked with young persons, who have been both in and out of custody, since 2011.
[79] Despite his experience, Mr. Heffernan testified that he has never worked with a young person who had been sentenced at or over the age of 20. This is not the norm for him.
[80] Mr. Heffernan made inquiries, but surprisingly was unable to get any information as to what programming would be available for J.J. in an adult facility. Nor was he able to advise the Court where J.J. would likely be sent.
[81] Mr. Heffernan testified that had J.J. been a bit younger, upon sentencing, J.J. would be assigned to work with the probation officer who authored the pre-sentence report. That work would begin during the custodial portion of any sentence, and would continue upon J.J.’s release into the community. However, Mr. Heffernan did not know for certain whether J.J. would be working with the same probation officer at the adult facility.
[82] Likewise, had J.J. been a bit younger, there would normally be a case manager assigned to oversee his rehabilitation and reintegration. The probation officer/case manager would develop a case management plan for J.J., both while J.J. was in custody, and later on during his time under community supervision. Provided the Court makes an Order for its release, the case management team would have access to the section 34 assessments, to aid it in the development of its plan for J.J.
[83] Mr. Heffernan testified that there would be a case management meeting within the first 30 days of the sentence, but he said that it would normally take about 6 weeks to develop a case management plan. It was Mr. Heffernan’s understanding that this case management planning would still be done for J.J., despite his age and a potential placement in an adult facility.
[84] According to the section 34 report, J.J. is in the medium risk range for re-offense, although he presents a low risk for continued difficulties relating to illegal sexual interactions over the next 12 months. He nevertheless has various, targeted needs. They include concerns related to his poor relationships with family, educational concerns, namely low achievement and truancy, lack of employment, substance use and limited organized activity.
[85] Indeed, J.J. has very little family support and has no realistic plan for education or work. He is now involved in a relationship with a young woman, age 18, and they have a young child. To the assessor, J.J. reported that he is not working, choosing to instead focus on caring for his daughter and spending as much time with her as possible. I have little information as to exactly how much time they spend together, nor do I have any information about how this new child is being financially supported.
[86] The section 34 report states that steps will need to be taken for J.J. to be successfully rehabilitated and reintegrated into Society. The Court is very concerned that J.J.’s lacks the skills to start implementing those steps, without assistance. J.J. will need a considerable amount of support.
[87] I repeat again here that he requires support to help him finish his education and/or find employment. He also needs counselling, including for the purpose of ensuring that he fully understands and appreciates his role in the offences and takes responsibility for his actions.
[88] More particularly, one of the core recommendations (among several) in the section 34 and in the pre-sentence reports is that J.J. engage in sexual offence-specific counselling at Radius Child & Youth Services. I am told that Radius would also offer him trauma and family counselling, too. In my view, J.J. would benefit from both of these additional forms of counselling (in addition to sexual offence-specific counselling), given his troubled background and his current circumstances.
[89] However, the Radius program is only available to young persons up to age 19. Nonetheless, the intake worker at Radius indicated that J.J. could be placed on a waitlist, provided that a referral for its service was made before he turned 20. Mr. Heffernan confirmed that fortunately, the probation officer who authored the pre-sentence report already made the referral, on his own initiative, in advance of the sentencing hearing and prior to J.J.’s 20th birthday.
[90] I inquired as to how J.J. would be able to access Radius, if he is in an adult institution. Mr. Heffernan testified that J.J. could begin working with Radius via an online platform. However, Mr. Heffernan confirmed this would be subject to whichever institution’s (in which J.J. is placed) ability to facilitate that, something which he could not guarantee. And based on what I heard next from the Crown, J.J.’s participation in Radius is by no means certain during his incarceration in an adult facility.
[91] After Mr. Heffernan testified, the Crown relayed the information she obtained from having spoken to two persons working in corrections. The first person with whom the Crown spoke was Lana Armstrong. I am told that Ms. Armstrong is a program coordinator at the Toronto South Detention Centre.
[92] Although J.J. will not be housed in the Toronto South Detention Centre, Ms. Armstrong nevertheless informed the Crown, based on her general experience working in corrections, that J.J.’s status as a young person under the YCJA will not be taken into account in an adult facility, in that he will not be treated differently from other inmates. She did say that those responsible for him will try to match him to appropriate programming, but apparently she offered little more by way of specifics.
[93] The Crown also spoke to Lisa Morrison, the head of social work at the Central North Correctional Centre. I am told that Ms. Morrison made similar statements to the Crown. And further, Ms. Morrison told the Crown that because of Covid-19, no programming will be offered to J.J. at all, for the “foreseeable future”. J.J. would have to engage in some form of self-study. That is not likely to succeed, in light of the findings of the assessors in the reports before the Court.
[94] By contrast, Mr. Heffernan testified that programming is still running in the youth system, although with some modifications due to Covid-19.
G. Does This Amount to a Collateral Consequence?
[95] In R. v. Pham, 2013 SCC 15, Mr. Pham received a sentence of two years imprisonment. Under the Immigration and Refugee Protection Act, a non-citizen sentenced in Canada to a term of at least two years loses the right to appeal a removal order. See R. v. Pham ¶ 4.
[96] Consequently, there was a sentence appeal. Mr. Pham asked the appellate court to reduce his sentence by one day. The Alberta Court of Appeal declined to do so. A further appeal was taken to the Supreme Court of Canada.
[97] Before the Supreme Court, Mr. Pham argued that the sentencing judge was not aware of, and did not consider the collateral consequences of the sentence on his immigration status.
[98] The Supreme Court in R. v. Pham held that ultimately, a sentence must be consistent with the fundamental purpose of sentencing. In determining what a fit sentence is, the Court should take into account objective and subjective factors related to the offender’s personal circumstances. See ¶ 8, 10.
[99] At ¶ 11, the Supreme Court defined the “collateral consequences of a sentence” as “any consequences for the impact of the sentence on the particular offender”. They are not, strictly speaking, aggravating or mitigating factors. Their relevance flows from “the application of the principles of individualization and parity” and “from the sentencing objective of assisting in rehabilitating offenders”. Citing Professor Manson in the Law of Sentencing (2001), the Supreme Court further held at ¶ 12 that, “…[b]urdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel”.
[100] Although the concept of collateral consequences was discussed in the adult context in R. v. Pham, its principles apply in the youth context too. See for example R. v. Z.C., 2020 ONSC 5999 ¶ 182-196.
[101] Now it is true that in R. v. Pham, the Court was concerned with the subsequent immigration consequences on the offender flowing from a different piece of legislation, the IRPA. In this case before me, the issue is whether there can be collateral consequences flowing from the operation of section 89 of the governing statute, itself.
[102] Counsel for the defence says yes. She relies on R. v. Fisher, 2019 MBCA 82 to argue that the impact upon J.J. of him serving a custodial sentence in an adult facility is a collateral consequence.
[103] I do not find R. v. Fisher to be entirely on point, however. In R. v. Fisher, the young person was 20 years old. He was sentenced to 6 years for second degree murder, broken out between secure custody and community supervision. At a subsequent review, the youth court converted the secure custody to open custody, allowing for him to take reintegration leaves. During one of his leaves, the young person did not return.
[104] The young person was arrested and pleaded guilty to being at large without lawful excuse. He was sentenced to two months’ incarceration. By operation of section 743.5(1) of the Criminal Code, because he was sentenced to a term of imprisonment, the remaining portion of his youth sentence was to be dealt with as if it had been a sentence imposed under the Criminal Code. That meant that his remaining youth sentence was converted into a penitentiary sentence of four years, two months and two days.
[105] In setting aside the custodial sentence of two months, at ¶ 13 the Manitoba Court of Appeal held that the collateral consequence under section 743.5(1) of adult federal incarceration is a “personal circumstance of the accused and, as such, was a material factor for the sentencing. It is relevant to the issue of whether the sentence is proportional not only for the offence, but for the accused, particularly with respect to his rehabilitation, which had seen progress while in custody at the Youth Centre”.
[106] For a further example, see also R. v. M.M., 2018 ONCJ 515, in which Wheeler J. of this Court imposed a conditional discharge upon an adult offender, to avoid the collateral consequence of section 119(9) of the YCJA upon her pre-existing youth record.
[107] Although in R. v. Fisher, the collateral consequence flowed from the operation of the Criminal Code itself as opposed to some other piece legislation, I have said it is not entirely on point for the following reason. The issue in R. v. Fisher (and in R. v. M.M., too) was what was the appropriate sentence for a subsequent offence, and whether its impact on the pre-existing sentence and therefore the offender, rendered it unfit.
[108] Whereas the issue in this case before me is whether section 89, which requires J.J.’s initial youth sentence to be served in an adult facility, should result in this Court imposing a lesser sentence on him in the first place. I therefore tend to agree with the Crown that the operation of section 89 itself is not strictly a collateral consequence per se, within the meaning of R. v. Pham.
[109] However, by the same token, there is no question, in light of the evidence I heard, that serving a custodial sentence in an adult facility will be a harsher sentence. So I would nevertheless find that how the adult facility implements J.J.’s youth sentence, in practice, can be a collateral consequence to J.J. And it is one that he suffers solely as a result of his age. I find this is a hardship related to a personal circumstance that will make the rehabilitative path harder for J.J. to follow.
[110] To this I would add that various courts have taken Covid-19 as a collateral consequence in sentencing. In R. v. Hearns, 2020 ONSC 2365 for example, Pomerance J. canvassed some of the cases that have done so. Counsel for the defence did not specifically make arguments about Covid-19. The Crown, by contrast, already submitted that she would have sought a lengthier sentence of 18 months, but for Covid-19. When the Crown made that submission, I understood it to be based on the risk of transmission in a facility, as opposed to an anticipation that the facility would not adequately plan for J.J.
[111] But having now heard from Mr. Heffernan and from the others via the Crown’s submissions, there is an entirely different collateral consequence flowing from Covid-19. That is, it appears that whichever adult facility in which J.J. will be housed, may not offer him any programming.
H. Conclusions Respecting Sentence
[112] For those reasons, I am prepared to accede to the Crown’s further concession, that there be a further reduction of the custody and supervision order to 12 months. There will be probation for an additional 12 months after that.
[113] Although the Court has concerns about what it has been told about the adult facility, I am reminded by R. v. Pham that the sentence must still be an appropriate one. As the Supreme Court also said in R. v. Pham, “[t]he flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will”.
[114] And, “[t]he further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender” (and/or in the case of the YCJA, the less likely it will promote the purpose of sentencing set out in section 38). See R. v. Pham ¶ 15 and 18.
[115] So for all of the reasons expressed earlier and based on my review of the applicable policy and principles of the YCJA as a whole, I find that the sentence of 12 months of custody and supervision, proposed by the Crown, is an appropriate one to hold J.J. properly accountable and to address the principles of the YCJA. It therefore follows that I do not find the shorter custodial sentence proposed by the defence (nor would I find a non-custodial sentence) to be appropriate at this point.
[116] J.J.’s sentence will also contain conditions during its community portion, and during the period of probation that will follow, pursuant to section 38(e.1). They will be set out below. It is my view that these are necessary to achieve the purpose set out in section 38(1). I am satisfied that J.J. will reasonably be able to comply with them. No condition is being imposed as a substitute for appropriate child protection, mental health or other social measures.
I. The Relevance of the Sentence Review Provisions of the YCJA
[117] Despite what I have expressed above, that does not end this matter.
[118] Given the evidence I heard about J.J. in an adult facility, and in light of the Crown’s further suggestion that the Court set a sentence review in 30 to 60 days, I intend to address the interaction of section 94(6) of the YCJA, with section 89, and with the other sentencing provisions that I have applied.
[119] I start with the premise that this Court does have the power to grant leave for a sentence review, pursuant to section 94(4). That power does not disappear just because J.J. enters an adult facility. See again R. v. K.(C.).
[120] However, R. v. A.A.Z. is one of the few appellate decisions of which I am aware, that provides additional guidance beyond the wording of the statute itself, as to whether and if so how the Court may consider the sentence review provisions, when determining a youth sentence at first instance.
[121] In particular, at ¶ 137, the Manitoba Court of Appeal held that section 39(8) specifically prevents the Court, “from imposing a lengthier sentence than would be called for on accountability principles, by anticipating that the length of the sentence could be reduced at a later time, should circumstances change”.
[122] Further, at ¶ 138 and 139 of R. v. A.A.Z., the Court cited another decision of the Manitoba Court of Appeal, namely R. v. F.C.C., 2004 MBCA 164. In that decision, the youth court judge had imposed a 24-month custody and supervision order, but concluded his judgment by saying, (I quote here verbatim):
I am giving the sentence mindful of the fact that there are reviews throughout the, the process under this Act and in particular, usually so at this stage, this seems to be [a] young person who, who may well, if he continues his positive attitude, may well have a relatively soon review in which this, this decision can be amended by the review process.
[123] The Court of Appeal in R. v. F.C.C. held that the youth court judge erred in principle in having considered the sentence review process. That was a contravention of s. 39(8). However, the Court of Appeal still dismissed the appeal because of the little weight placed on the review process, in contrast to the judge’s ample consideration of the appropriate factors and principles of the YCJA. In other words, the sentence was otherwise fit and appropriate.
[124] In summary, section 39(8) of the YCJA requires this Court to first decide how much custody is required to make the young person accountable, and then to apportion it between custody and community supervision. The Court is not to “tag on” more time on the theory that the sentence might later be reduced. See R. v. A.A.Z. ¶ 34. [1]
[125] Nor should the Court, for example, use the sentence review process to impose a sentence that is not otherwise available in law. In R. v. B. (L.K.), 2002 ABCA 227, the sentencing judge imposed a custodial sentence, but then invited an immediate sentence review. When the young person requested the review, the sentencing judge converted the sentence to a community disposition. The sentencing judge would have ordered a conditional sentence in the first place, but that was not an available sanction under the Young Offenders Act. The Alberta Court of Appeal held that in so doing, the judge conduct the review in a manner contrary to the spirit of the review procedure. See R. v. B. (L.K.) ¶ 10.
[126] Having regard to the foregoing, I wish to reiterate that it is my view that 12 months of custody and supervision, followed by 12 months of probation, is the appropriate sentence. I do not view 12 months of custody and supervision to be a longer than appropriate sentence, even if it is to be served in an adult facility, on the theory that I may reduce it later.
[127] While it is my view that this sentence is necessary to properly hold J.J. accountable (as opposed to a further reduction of the sentence at this time), in tandem with that, I also wish to set out the Court’s expectations.
[128] It is not acceptable for the adult facility not to make specific provision for J.J., nor to fail to address the goals of the YCJA, just because it may be unusual for it to be housing an adult “young person” as defined by the YCJA. As Duncan J. said at ¶ 25 of R. v. K.(C.), the adult facility must “provide for and accommodate [J.J.] in a way that conforms to the principles of youth criminal justice”. Insofar as this relates to a future review, “the failure of an adult facility to conform to the principles of youth justice may support a finding that the offender’s needs are not being met.” And that is a factor that can be taken into account on a later review.
[129] In summary, depending on what happens next, it may be appropriate that J.J.’s sentence to be changed on a future review. Therefore, I will set a date for a sentence review at this time. I do not view the Court setting a review date at this time to be running afoul of the prohibition in section 39(8), so long as the sentence that I impose at this time, is fit. The outcome of the review will depend on the evidence at the time.
[130] The Court’s decision on the future review will be based on its application of the principles that govern review applications under section 94 of the YCJA, when the review proceeds. Without in anyway foreclosing or prejudging the merits of any of the grounds of the review, I note that pursuant to section 94(6)(d) in particular, one of the grounds for the review of a youth sentence is where the opportunities for rehabilitation are now greater in the community.
[131] On the review, among whatever other relevant evidence that either the Crown or the young person might wish to call, the Court will require evidence as to the conditions to which J.J. is being subjected, the plan developed for J.J. in case management, how exactly it is being implemented, whether any temporary absences are being granted to enable this, and how J.J. is being assisted regarding his education and his learning issues, regarding the counselling, and particularly regarding the implementation of counselling at Radius.
[132] In light of Mr. Heffernan’s evidence that it will take about 6 weeks to develop a case management plan for J.J., I would fix a date for a sentence review on or about 60 days following the release of this decision, as opposed to the 30 days initially suggested by the Crown.
PART V: SENTENCE
[133] For those reasons, I impose the following global sentence upon J.J.:
Custody and Supervision
(a) J.J. is ordered to serve a custody of supervision order of 12 months, to be served 8 months in custody, to be followed by 4 months under supervision in the community subject to conditions;
(b) If J.J. breaches any of the conditions while under supervision in the community, he may be brought back into custody and required to serve the rest of the second period in custody as well;
(c) J.J. should also be aware that, under other provisions of the YCJA, a court could require him to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence;
Probation
(d) J.J. shall then be placed on probation for a period of 12 months;
Terms and Conditions of the Community Portion of the Custody and Supervision Order and During Probation
(e) The following terms apply both respecting the community portion of the custody and supervision order and during the probation;
(f) J.J. shall keep the peace and be of good behaviour;
(g) J.J. shall report to the provincial director and then be under the supervision of the provincial director;
(h) J.J. shall inform the provincial director immediately upon being arrested or questioned by the police;
(i) J.J. shall report to the police, or any named individual, as instructed by the provincial director;
(j) J.J. shall appear before the youth justice court when required by the court to do so;
(k) J.J. shall reside at an address that the provincial director approves of;
(l) J.J. shall advise the provincial director, the clerk of this court and any worker assigned to his case of any change of address, or his place of employment, education or training, changes in his family or financial situation and any other change that may reasonable be expected to affect his ability to comply with the conditions of the sentence;
(m) J.J. shall attend school and/or seek and maintain suitable employment;
(n) J.J. shall not possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as needed for, and while at school or work;
(o) J.J. shall attend any counselling, assessment or treatment as directed by the provincial director, and he shall sign any releases so that they may monitor his participation;
(p) J.J. shall not communicate directly or indirectly with A.G., or attend anywhere she is known to live, work or go to school;
(q) J.J. shall execute any releases as required by the provincial director so that the provincial director may monitor J.J.’s compliance with any of these terms;
Weapons Prohibition and DNA Order
(r) Pursuant to section 51 of the YCJA, J.J. shall be prohibited from possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 5 years from the date of this Order, except as needed for, and while at school or work;
(s) There shall be an order in the proper form for the taking of DNA samples from J.J. pursuant to section 487.051 of the Criminal Code;
Release of Section 34 Report and Cognitive and Academic Assessment Report
(t) The section 34 report and the cognitive and academic assessment report shall be released to the provincial director. The provincial director may, in turn, release them to any person or program providing direct rehabilitative or treatment programming to J.J. Any further dissemination is strictly prohibited by the YCJA unless a further court order is sought;
(u) The portion of the section 34 report that addresses J.J.’s cognitive and academic needs, and the cognitive academic assessment report are to be released to J.J.’s school officials. J.J. himself may release a copy of those to anyone providing educational planning or programming; and
Sentence Review
(v) There shall be a review of J.J.’s sentence. The Court shall fix the review date when it releases this decision to the parties, to proceed before me on a date that is approximately 60 days from now. The parties should call the necessary evidence for the review, some of which I have articulated above.
[134] In addition, I am directing those responsible for implementing J.J.’s sentence, including those responsible for him in the adult facility, to read this decision in its entirety. It is the Court’s expectation that steps are to be taken to address the concerns that I have flagged.
[135] I wish to thank counsel for their assistance with this matter.
Released: March 1, 2021 Signed: Justice Alex Finlayson
[1] Incidentally, in R. v. A.A.Z., the Manitoba Court of Appeal did hold that it was appropriate for a sentencing judge to consider that a sentence may in the future be reviewed when deciding as to level of custody. See ¶ 140-143. Therefore, while the prohibition against considering the possibility of a future review is engaged when considering the length of a sentence, it may not apply to other matters relevant to sentencing.