R. v. J.D., 2021 ONCJ 204

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

ONTARIO COURT OF JUSTICE

DATE: 2021 03 16 COURT FILE No.: Halton 18 – Y1362

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JD, a young person

Before: Justice David A. Harris

Heard on: March 22, 2019, August 29, 2019, February 5, 2020, October 14, 2020, and January 28, 2021

Reasons for Sentence released on: March 16, 2021

Counsel: Amy Stevenson................................................................................... counsel for the Crown Daniel Kayfetz........................................................................... counsel for the accused JD

D.A. HARRIS J.:

INTRODUCTION

[1] JD pled guilty to sexual assault of CD. The offence occurred in Milton between April 1, 2015 and February 10, 2017.

[2] Crown counsel elected to proceed by indictment.

[3] He also pled guilty as an adult to assaulting CD. This occurred between May 1 and June 30, 2017 in Milton.

[4] JD waived the limitation period and Crown counsel elected to proceed summarily.

[5] JD is before me today to be sentenced. I will be discussing both the youth matter and the adult matter in these Reasons because each one reflects upon the other. I will however be sentencing JD separately in adult court with respect to the adult offence.

[6] With respect to the youth charge, Crown counsel suggested that I should sentence him to custody for 6 months, followed by probation for 18 months.

[7] Counsel for JD suggested that I place him on probation.

[8] Both counsel agreed that I should make the following ancillary orders:

1. a DNA order; and
2. a weapons prohibition order pursuant to section 51 of the Youth Criminal Justice Act.

[9] With respect to the adult charge, both counsel agreed that I should grant him a conditional discharge, with probation running for three years, and that I should make a DNA order. Crown counsel requested a weapons prohibition for five years pursuant to section 110 of the Criminal Code. Counsel for JD disagreed with this.

[10] I find that probation for two years is the appropriate sentence for the sexual assault offence.

[11] My reasons for this are set out under the following subject headings:

1. The purpose and principles of sentencing;
2. The offences;
3. The impact on the victim;
4. The background of JD; and
5. Analysis

PURPOSE AND PRINCIPLES OF SENTENCING

[12] In the Supreme Court of Canada decision of R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, Charron J. noted that when Parliament enacted the Youth Criminal Justice Act (YCJA) in 2003, Parliament did not simply amend its predecessor, the Young Offenders Act, it repealed it and replaced it with “a complex piece of legislation that has substantially changed the Canadian youth justice system at various stages of the process”. [2] This included:

substantial changes in the general youth sentencing process. The statute provides more specific guidance to judges. Detailed sentencing principles are expressly set out. Sentencing options are more regulated. Factors to be taken into account are spelled out. Mandatory restrictions are placed on the use of custodial sentences. The new sentencing provisions have been characterized as "the most systematic attempt in Canadian history to structure judicial discretion regarding the sentencing of juveniles". [3]

[13] The YCJA clearly states that the provisions of the Criminal Code on sentencing adults, save certain listed exceptions, do not apply to youth sentencing. [4]

[14] One needs to look to the YCJA itself for the purpose and principles of sentencing youths.

[15] The general purpose of youth sentencing is set out in section 38(1) which reads as follows:

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.

[16] The governing sentencing principles are set out in sections 3 and 38(2).

[17] Section 3 reads as follows:

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).

[18] Section 38(2) reads as follows:

(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;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; 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.

[19] Section 38(3) lists the factors to be considered in determining a youth sentence:

(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.

[20] Section 39 sets out when a court can and cannot commit a young person to custody:

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 previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137 , the young person caused harm, or a risk of harm, to the safety of the public in committing that offence;

(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.

(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.

(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.

(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.

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

(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.

(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.

(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.

(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).

[21] Before I can apply the above principles however I must examine the offence here, the impact that it had on the victim and the background of.

THE OFFENCE

[22] Although JD pled guilty to only one count of sexual assault, I was provided with the details of four occasions on which he had non-consensual sexual intercourse with CD. The agreed facts are as follows.

[23] Between April 1 and 31, 2015 JD and CD had just begun dating. She was a virgin and he was not. He was bothering her to have sex with him. She had been denying him but eventually agreed. The attended the Milton Sport centre where they entered the swimming change rooms for the purpose of having sexual intercourse. Once in the change room she became uncomfortable and stated that she no longer wished to do this. He pushed her against the wall and started to kiss her and take her pants off. She was pushing him back as she wasn't comfortable and wasn't ready. He put her on the ground where he entered her with his penis into her vagina. He then ejaculated on to the floor of the change room. At the time she felt emotionally and physically dirty. There was no one else in the change room at the time.

[24] In the spring of 2015, they went for a walk through the wooded area near Guardian Angel School, Milton. The attended an area where there was a couch. No one else was around. He put a condom on and pushed her down to her knees. He then took the condom. off and rubbed his penis on her mouth, before inserting his penis into her mouth. After a few minutes, he picked her up to her feet, turned her around, bent her over the couch, pulled her pants down, pulled his pants down, put the condom back on and inserted his penis into her vagina. After several minutes of intercourse he ejaculated. They left the trailed area and both went to their separate houses. There was no conversation during or after the incident. She did not consent to this.

[25] On October 31, 2015, he was at her house in Milton for Halloween. At one point they were in the kitchen and the family was in the living room. He wanted to have sex. She told him there were people around. He then turned her around and bent her over the counter, pulling her pants down. He inserted his penis into her vagina and after a few minutes ejaculated inside her. After, they went ·and watched a movie. There was no conversation during or after the incident. She did not consent to this.

[26] Between January1 and March 30, 2016, they were at her residence in Milton. They were sitting on the couch in the living room. They were the only people in the room. As they were sitting on the couch she advised him that she did not wish to do anything sexual in her residence for fear of her parents finding them. He continued to kiss her and lay on top of her before he took off her pants. She was crying and saying no, and she attempted to push him away. He grabbed both of her wrists and pressed them against her chest preventing her from moving. He put his penis into her vagina and while doing this said, ''is it bad but this rape is turning me on even more”. He ejaculated and she put her pants back on and they watched a movie.

[27] With respect to the assault that he committed as an adult, the facts are that between May 1 and June 30, 2017, they were at his residence where they argued. She began to leave. He grabbed her and pulled her back into the residence. He pushed her against the wall and began to choke her to the point that she lost consciousness. She awoke to find him standing over her and yelling.

[28] She suffered minor redness to her neck and minor bruising on her arms.

[29] She attempted to leave again. At that point, he took her hamster from its cage and held it up, squeezing it and causing it to cry out. As she continued to leave he said that he would release it into the wild where the birds would get it.

[30] He did not follow through with this.

[31] As part of the proceedings I was provided with 11 pages of text messages which he sent her plus a handwritten note. Amongst other things these included a picture of himself holding a knife to his own throat and a picture of the local hospital.

[32] They broke up in June 2017 and there has been no contact between them since January 2018.

IMPACT ON THE VICTIM

[33] CD submitted a Victim Impact Statement. I have included it in its entirety. It reads:

What you did to me changed my entire life. I lost interest in life, in my schooling, in my hobbies, and relationships with my family and friends. The year after we broke up, I went into grade 12. I skipped over a third of my classes in the first semester. My attendance and mood were so bad that the school opted to have me transfer into a special program for students who were struggling with mental disorders and attending regular classes. If it weren't for this program, I don't think I would have graduated high school. I applied to university, got in, but deferred my offer for a year, because I knew I wouldn't have the motivation to go to school. I barely had the motivation to get out of bed. I'm in school now, but even after 2 years, I can't get past what you did to me. I was diagnosed with PTSD, major depressive disorder, generalized and social anxiety. I've gone through over 20 different medications in an attempt to find something that helps me cope with my extreme depression. I still have flashbacks, I still have nightmares, I still cry when someone raises their voice, or makes a sharp movement towards me. I can't handle confrontation. I freak out when someone touches my neck, even if it's gently.

I quit my job towards the end of our relationship. I didn't work for over a year. I put in no effort towards keeping my relationships with friends and family, I'm forever grateful that they never" gave up on me. I would have panic attacks that lasted hours, leaving me curled up in a ball, unable to speak for hours, sometimes days. I would stay in bed for days and wouldn't eat. I didn't go to the police about what you did to me until I was almost 18. It took me a year to process what I went through. A year for me to understand that I was a victim. Since the end of the relationship, I have made several suicide attempts, most of which resulted in stays in psychiatric units at different hospitals. Every year since we broke up, I've tried to kill myself on March 12th. That was our anniversary. The reminder of what I went through damages my will to live.

I have a service dog now. Her name is Dixie, and she helps me through panic attacks and flashbacks. Do you remember Charlie? The hamster you got me for our 2 year anniversary? She lived for over a year and a half and I miss her every single day. People say it's stupid because "she was just a hamster" but she was so much more than that to me. It felt like she was the only one who went through it with me. Nobody can ever fully understand what you did to me, and I don't even try to explain how badly it messed me up. But for some reason, 'it felt like Charlie understood.

I remember laying on the cold, hard tiles of the sport centre change room while you took my virginity. It was Easter Monday, in 2015. I remember exactly what I was wearing that day. I haven't worn those clothes since. I go to the sports centre for aquafit now, and I can never stop thinking about what you did to me in that room. I remember laying on the couch in my living room. The white one, with the striped fabric. You looked down at me, while you were holding my wrists together and you said some words which I will never forget. You looked down at me and said, "is it bad that the fact that this is rape is turning me on even more."

Those are the words that haunt my nightmares, my flashbacks. I can't get them out of my head.

I wish somebody understood. I wish they understood how scarred I am. I couldn't look in a mirror without having a panic attack. My own face was. a trigger. I was cutting my hair and dyeing it non-stop, just so I wouldn't hyperventilate when I saw my own reflection. I wish someone could understand how badly I just wanted the hurting to stop. Do you know how desperate to die I was? I took 54 extra strength tylenol. 28 grams of acetaminophen. The doctors thought I would need a liver transplant. During my last visit to the hospital, almost a year ago, I took a plastic knife and cut so deep into my wrists that the scars are still there. I took a pen and scratched so deep into my wrist that I could see my veins. I have scars from over 2 years ago, from right after we broke up. I couldn't stop cutting my wrists, my hips, the insides of my thighs. I didn't want to feel your hands on my body, but I still could, and I still can. I've taken showers so hot, that they burned my skin. I feel so dirty. I scrub myself raw, but I can't get that feeling to go away. I want a new body, one that you've never touched.

I wish someone understood. But I am so glad they don't. I wouldn't want anyone to feel the way that I do. The absolute dread that I feel when I try to go anywhere that we went. The absolute disgust that I feel when I see my own body in the mirror. You ruined the way I look at myself. You ruined so much for me. I can't pretend I've even slightly gotten over it, because I'm sitting here sobbing as I write this. And it's not that I haven't tried. I've tried so hard. Hundreds of hours of therapy, trying to talk about what you did to me, and I still can't comprehend everything.

So here I am, barely 19 years old, practically a child, but you stole my innocence years ago.

My injuries aren't recent, but they sure as hell aren't healed.

BACKGROUND OF JD

[34] I have been provided with a psychological assessment, a psychiatric assessment, and five letters. All of this provided me with the following information.

[35] JD is now just over 22 years old.

[36] He was between 16 and 17 years old at the time of the offence.

[37] JD was born in the Philippines. His father is a chemical engineer and his mother is a retail manager. He has an elder brother who resides in Windsor.

[38] The family immigrated to Canada when JD was five years of age. They lived in Scarborough and then moved to Milton in 2012. Between the ages of five and fifteen JD reported a happy and stable home environment. He was cared for by both parents who supported his extracurricular activities such as swimming, track and field, cross country and volleyball.

[39] Around the age of sixteen, his mother experienced increased pressure at work and was placed on stress leave. The home environment changed and JD felt financial and emotional strain occurred due to his father juggling family commitments, work, and keeping both sons in their extracurricular activities. During this time JD recalled spending increased time withdrawn and isolated in his room playing video games.

[40] JD’s mother accessed treatment including counselling and medication and progressively got better over time.

[41] During JD's grade eleven/twelve year at school his father was transferred to Saudi Arabia for a year for work. JD described this period as a difficult time as his mother had a male friend who JD did not get along with. He also stated felt "pushed away'' as his mother was focused on her friend and not her children.

[42] Upon his father returning, JD believed his father had a sense of what was going on and there was increased conflict between his parents. A couple of months before JD's graduation his father and his mother separated. The family home was sold and JD and his father moved into a new house and his mother secured accommodation separately. He recalled feeling like his mother did not want him around at this time. Subsequent to his parent's separation, he and his mother have been "mending their relationship" and that they now have regular contact. His parents are "civil" towards each other and there is no ongoing conflict or family stress.

[43] The family was religious and would attend church every Sunday. He stated that they would also pray before eating. The family followed the Catholic religion and JD noted that he remained spiritual but did not continue to attend a structured religious practices.

[44] JD attended kindergarten in the Philippines. The family then moved to Canada and he began senior kindergarten at St. Maria Goretti. He remained in this school until partway through grade six. While there he was suspended on two occasions as a consequence of fights with others. These fights were as a result of ongoing bullying that he endured.

[45] The family then moved to Milton where he attended Guardian Angels School until the end of grade eight.

[46] JD maintained grades in the 80th to 90th percentile for much of his schooling. Upon transitioning to Guardian Angels School he lost many of his close friends and had difficulties making new friends. He had also transitioned halfway through the school year and as such, his grades fluctuated.

[47] He began attending Bishop Reding in his grade nine year and initially did quite well at school. His grade nine and ten years went well and he maintained high grades. In his grade 11and 12 years, there was "significantly more stress balancing after school stuff with my friends and hanging out with my girlfriend". His grades fell to the 70th percentile. His parents then separated and this caused significant discord and difficulties at school. He "started to skip class and would go to work so that I had money for university". He failed one course in grade 12.

[48] He completed his high school degree.

[49] With regard to employment, JD began working at the age of fifteen on a part time basis and has worked as a coach with his swim team and as a lifeguard for the Town of Milton. Upon graduation from high school he worked in packing and receiving at Amazon and as a technician with Mr Lube. During his time at Mr Lube JD was offered an apprenticeship at Team Honda in automotive mechanics and he has been employed in this program since then.

[50] He works at Team Honda during the week and attends related classes on weekends.

[51] His foreman wrote a reference letter in which he spoke highly of JD. He also confirmed that he was aware of JD’s offences

[52] JD identifies as heterosexual. He became sexually active at the age of fourteen or fifteen. He has had four to five sexual partners using protection intermittently.

[53] Most of his partners were in the context of dating and long-term relationships. His last long-term relationship was approximately two and a half years with CD.

[54] JD is currently in a relationship with a female who is three years younger than him. They have been together for three years. He described his current relationship as positive and denied any concerns with infidelity, trust or jealousy as well as any conflict such as verbal or physical aggression. I received letters from the girlfriend and from her father. Both are aware of JD’s offences and both were very supportive of him.

[55] JD informed that he had a "fear of getting caught" when engaging in sexual intercourse. He would fantasize about engaging in intimate encounters in public areas. He noted that "the most risky sex" he had had was when he ''had sex outside really close to the train tracks". This was with CD.

[56] JD did not have any contact with mental health professionals for assessment or treatment during childhood or adolescence.

[57] At the age of eighteen JD was admitted to Oakville Trafalgar Memorial Hospital after being brought to the emergency department by police after endorsing suicidal thoughts to a friend. He was found by police on a pedestrian overpass with a rope tied into a noose and was suicidal at the time of police apprehension. This incident was reported to be triggered by a culmination of several months of family and psychosocial stressors including his parent's divorce, the break up with CD, a change in residence, difficulties balancing home and school demands which placed his pending graduation into question. and a visit to the Philippines to see his grandfather who was ill and on dialysis.

[58] During this admission it was determined that JD was experiencing anxious and depressive symptoms in the context of multiple significant psychosocial stressors. He was diagnosed with Adjustment Disorder with depressed mood and discharge recommendations were made for therapy follow up with his family physician, and brief follow up with urgent care to re-evaluate the potential for an emergent mood disorder.

[59] Subsequent to his brief inpatient admission, JD met with a counsellor for weekly sessions for three months which he stated was helpful as he better understood his feelings. stressors, and could cope with changes in his life.

[60] The Psychiatric Assessment notes the following:

(1) He has experienced at least one episode of prolonged sadness resulting in suicidal ideation and is prone to significant deterioration in his mood when worried. He has previously been diagnosed with an adjustment disorder;

(2) He has a history of becoming increasingly upset and angry when triggered.

(3) He reports sexual arousal involving the possibility of being discovered in the midst of engaging In sexual acts. This form of voyeurism can be classified as a form of paraphilia; however, JD does not have a significant history of these behaviours resulting in social disruption or distress. He does not present with a specific paraphilia and further denies any sadistic or masochistic tendencies.

(4) His mood symptoms as well as poor frustration tolerance are best encapsulated by an underlying adjustment disorder. He is prone to significant mood symptoms and low frustration tolerance when facing severe psychosocial stress.

(5) He does not meet criteria for an underling major depressive disorder, nor does he meet criteria for an underlying personality disorder or conduct disorder.

[61] The psychiatrist made the following recommendations:

(1) JD would benefit from further anger management and training to improve his frustration tolerance and from further psychoeducation in regards to coping strategies to deal with stress.

(2) he would benefit from psychoeducation regarding consent and safe sexual practices.

(3) His mood should continue to be monitored over the course of time by his family physician.

[62] The Psychological Assessment made the following observations:

(1) The results of the cognitive screening revealed his verbal abilities fall within the Average range and performance abilities fall within the High Average range.

(2) Academic testing revealed word reading skills are relatively stronger than his spelling and math skills. Overall, literacy and numeracy skills fell at a post secondary education level.

(3) Subsequent to his admission to hospital, the course, nature and duration of his symptoms were assessed as most consistent with a diagnosis of Adjustment Disorder with depressed features. He engaged in counselling provided by outpatient/community services for approximately three months. During the current assessment, he reported improvement in mood, a decrease in anxiety, reduced anger/frustration, and an absence of suicidal ideation or behaviour.

(4) Should he experience significant stressors in the future, he would benefit from close monitoring of symptomatology to rule out the emergence of a mood or anxiety disorder and to ensure early intervention and re­ initiation and of counselling and support services.

(5) In relation to offending, it appeared that a combination of risk factors including unhealthy relationship dynamics related to consent, coercion, interpersonal boundaries, and ineffective communication contributed to his offending behaviour. Other stressors within the relationship such as jealousy, mistrust, conflict (verbal aggression), and difficulties managing frustration and anger likely exacerbated risk.

(6) Risk assessment results revealed that he presents at low risk for sexually inappropriate behaviours in the future.

(7) In terms of protective factors, risk will be further mitigated by engagement and participation in counselling to address his risk factors related to offending, engagement in full time employment, a healthy and stable intimate relationship, support from family and pro-social peer networks.

[63] The following was recommended:

(1) He would benefit from involvement with probation services. The structure, monitoring, and support of a Probation Officer would be valuable to him. The Probation Officer should receive a copy of the psychological assessment report.

(2) He requires counselling to address risk factors related to his offending and the relationship dynamics that may have contributed to risk. He would also benefit from further counselling to manage difficult emotions, specifically skills that target emotional regulation and distress tolerance.

(3) He should be encouraged and supported to complete his mechanics apprenticeship and secure full-time employment. Both these are considered protective factors to mitigate risk of recidivism

(4) He is also encouraged to re-engage with structured leisure and recreational activities with pro-social peers; both of which are favourable prognostic signs for future adjustment.

[64] The remaining reference letters were from JD’s mother and a long-time friend. Both were very supportive of JD.

ANALYSIS

[65] The first issue to be determined by me is whether I have the jurisdiction to impose a custodial disposition here.

[66] Counsel agreed that I do pursuant to section 39(1)(a) of the YCJA since JD committed a violent offence.

[67] Section 2(1) of the YCJA provides that:

"violent offence" means

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

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

[68] Bodily harm is not defined in the YCJA, however, Section 2(2) provides that "unless otherwise provided words and expressions used in this act have the same meaning as in the Criminal Code." Bodily harm is defined in Section 2 of the Criminal Code as meaning “any hurt or injury to a person that interferes with the health or comfort of the person, and that is more than merely transient or trifling in nature.”

[69] In R v McCraw, the Supreme Court of Canada makes it clear that "any hurt or injury" includes psychological harm as well as physical harm. [5]

[70] In R v C.D. ; R v C.D.K., 2005 SCC 78, the Supreme Court of Canada applied this definition to the YCJA. [6]

[71] Everyone here agrees that the offense committed included as an element the causing of psychological harm and therefore, qualified as a "violent offense" within the meaning of the YCJA.

[72] That then leads us to another legal issue that is before me. Was the offense one that caused or attempted to cause serious bodily harm? If it is, a deferred custody order is precluded by Section 42(5) of the YCJA.

[73] Going back to R v McCraw, supra the Supreme Court of Canada stated that serious bodily harm is "any hurt or injury whether physical or psychological that interferes in a substantial way with the physical or psychological health or comfort of the complainant." [7]

[74] Everyone also agrees that this is the case here and that a deferred custody order is not available.

[75] Having determined that I must then determine whether I should impose a custodial disposition or probation.

[76] Crown counsel argued for custody. Counsel for JD argued for probation.

[77] In determining that issue, I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of JD and yet, at the same time, one that is responsive to his unique circumstances.

[78] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence.

[79] The aggravating factors can be found in the facts of the offence itself.

[80] In assessing these, I have noted the list of factors proposed in R. v. Friesen, supra, including the following:

(1) Likelihood to reoffend (2) Duration and Frequency (3) Age of the victim (4) Degree of Physical Interference

[81] With regard to his likelihood to reoffend, the Psychological Assessment states that he is a low risk to reoffend especially if certain steps are taken.

[82] I note also that he has stayed out of trouble for the past 44 months. The last sexual assault was more than four years ago.

[83] Finally, the information received from his current girlfriend and her father strongly suggests that he has changed.

[84] With respect to duration and frequency the offence occurred on four separate occasions spread out over a period of 22 months.

[85] With respect to the age of the victim, CD was barely 14 when this began and barely 16 when it ended. He was almost two years older than her.

[86] With respect to the degree of physical interference, I note the comments at paragraph 138 in R. v. Friesen, supra:

We acknowledge that the degree of physical interference is a recognized aggravating factor. This factor reflects the degree of violation of the victim's bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim's sexual integrity. [8]

[87] In this case there were four separate incidents of non-consensual sexual intercourse. On at least one occasion, this was unprotected sex. In addition, on one occasion he forced his penis into her mouth. This constitutes the highest possible degree of violation of her bodily integrity.

[88] The impact on the victim has been devastating. Her Victim Impact Statement makes it clear that it will be a very long time, if ever, before she gets over this.

[89] Quite frankly, if I were to stop my analysis at this point, I would not hesitate to sentence JD to secure custody.

[90] There are however a number of mitigating factors here.

[91] JD is still a very young man. He was even younger when he offended.

[92] He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victim to testify. She was spared the ordeal of revisiting her victimization in a public courtroom.

[93] He did make comments to both the psychologist and the psychiatrist in which he appeared to be denying criminal responsibility but he subsequently explained his actions and unequivocally stated to me that he was very much guilty of the offence.

[94] I will state that I was not at all pleased to learn that he had told both the psychiatrist and the psychologist and his new girlfriend things about CD which I would expect her to find very embarrassing if they were true. That reflects very badly on JD. If they were not true, they are unforgiveable. In the absence of definite information, I must give him the benefit of the doubt on this. I will not however repeat his statements in these Reasons.

[95] JD had no prior criminal record.

[96] He has been bound by bail conditions since his release and has not offended further.

[97] He has the support of family and others in the community.

[98] He has completed high school and obtained a good job. He shows every intention of continuing to improve himself in that regard. He appears to have matured considerably over the past four years.

[99] I am mindful of the directions given to me by the YCJA. Specifically, I have reminded myself that section 38 of the YCJA requires that:

(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;

[100] I also remind myself that section 39 (2) requires that:

(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.

[101] JD has not reoffended in the past 44 months. Clearly secure custody is not needed to deter him.

[102] I also note that through no fault on his part, the sentencing of JD is taking place well beyond his 20th birthday. Accordingly, pursuant to section 89 of the YCJA, if I impose either open or secure custody, JD will “be committed to a provincial correctional facility for adults to serve” that sentence. I am even more of the view that sending him to a provincial reformatory, where he would be surrounded by adult prisoners, is definitely not necessary to deter JD.

[103] I am even more reluctant to send him there at a time when Covid 19 outbreaks have occurred in a number of these institutions.

[104] General deterrence is not a factor in sentencing under the YCJA.

[105] Finally, I am satisfied that the recommendations made regarding the continued rehabilitation of JD can be dealt with as part of a strict probation order.

[106] This order will include a period of house arrest followed by a period in which he will be subject to a curfew. It will also include a significant amount of community service. I am mindful of the fact that when community service orders were first introduced, they were touted as an alternative to imprisonment.

[107] Further, I am satisfied that denunciation can also be addressed appropriately by such an order.

[108] I am also mindful of the fact that I will be able to keep him away from CD for three years as a term of probation with respect to the adult charge.

[109] After taking all of the above factors into consideration, I find that it is appropriate for me to sentence him to probation for two years.

SENTENCE

[110] For all of the above reasons, I sentence JD to probation for two years. The terms of that probation will require him to:

1. keep the peace and be of good behaviour;
2. appear before the youth justice court when required to do so by the court;
3. notify the court or the youth worker in advance of any change of name or address and promptly notify the court or the youth worker of any change of employment or occupation;
4. report to a youth worker within two working days and after that, at all times and places as directed by the youth worker or any person authorized by the youth worker to assist in his supervision;
5. cooperate with his youth worker. He must sign any releases necessary to permit the youth worker to monitor his compliance and he must provide proof of compliance with any condition of this order to his youth worker on request;
6. live at […], Milton, Ontario, or a place approved of by the youth worker and not change that address without obtaining the consent of the youth worker in advance;
7. for the first six months of this order, he will remain in his residence or on the property of his residence at all times except: a. for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling), b. for going directly to and from, or, being at school, employment , court attendance, religious services, legal or medical or dental appointments for himself. c. for attending for any assessment, treatment or counselling or for performing community service; d. he will confirm his schedule in advance with his youth worker setting out the times for these activities e. with the prior written approval of the youth worker. The written permission of the youth worker is to be carried with him during these times f. Between 1:00 pm and 5:00 pm on Sundays for the purpose of shopping for necessities.
8. During the period of home confinement, he must present himself at his doorway upon the request of his youth worker or a peace officer for the purpose of verifying his compliance with his home confinement condition.
9. Further during this period of home confinement, he will not consume alcohol or cannabis products.
10. Following this home confinement, for the next six months, he must remain in his residence or on the property of his residence at all times daily between the hours of 11:00 p.m. and 5:00 a.m. except: a. for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling), b. for going directly to and from, or, being at school or employment, or c. with the prior written approval of the youth worker. The written permission of the youth worker is to be carried with him during these times.
11. He will not contact or communicate in any way, directly or indirectly by any physical, electronic or other means with CD and you will not attend within 20 meters of any place you know her to live, work, go to school, attend church or know her to be.
12. He will attend and actively participate in all assessment counseling and rehabilitative programs as directed by the youth worker and complete them to the satisfaction of the youth worker, including but not limited to: (1) anger management and training to improve his frustration tolerance. (2) psychoeducation in regards to coping strategies to deal with stress. (3) other psychological or psychiatric issues (4) psychoeducation regarding consent and safe sexual practices. (5) a sexual offender relapse prevention program, or (6) any other program recommended by his youth worker.
13. perform 100 hours of community service work. This work is to commence by July 1, 2021 and shall be completed at a rate of not less than 10 hours per month. He shall complete the work as directed by and to the satisfaction of the youth worker. He shall complete all of his community service hours by / within 12 months.
14. He will make reasonable efforts to seek and maintain suitable work or attend school or an education or training program approved by the youth worker.

[111] I also make the following ancillary orders:

[112] Sexual assault is a primary designated offense and I make an order authorizing the taking from JD of any number of samples of one or more bodily substances including blood that are reasonably required for the purpose of forensic DNA analysis.

[113] Pursuant to Section 51(1) of the Youth Criminal Justice Act for the next five years, JD is prohibited from owning, possessing or carrying any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[114] Finally, I make an order that copies of the psychiatric assessment, the psycho­logical assessment, all other exhibits in this case and these Reasons for Sentence shall be given to the youth worker.

Released: March 16, 2021 Signed: Justice D.A. Harris

[1] R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 per Charron J.

[2] Ibid, at para. 19.

[3] Ibid.

[4] Ibid, at para. 22; Youth Criminal Justice Act, section 50(1).

[5] R v McCraw at paras. 21 through 23.

[6] R v C.D. ; R v C.D.K., 2005 SCC 78 at para. 20. I note that this decision came out before the definition of "violent offense" was added to the YCJA. In fact, it would appear when looking at the history of the amendment, this decision likely provided the impetus to amend the YCJA to include that definition. That subsequent amendment, however, does not affect the above reasoning.

[7] R v McCraw, supra at para. 23.

[8] Ibid, at para. 138.