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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 10 14 COURT FILE No.: Brampton 21-y-54

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

I.A.

Before: Justice Paul F. Monahan

Reasons for Sentence released on October 14, 2022

Counsel: D. Noonan............................................................................................. counsel for the Crown J. Kaldas............................................................................... counsel for the defendant I.A.

Endorsement

MONAHAN J.:

Introduction

[1] For written reasons released on June 22, 2022, I convicted the defendants I.A. and C.L. of sexual assault contrary to section 271 in the Criminal Code. A presentence report for each of the defendants was ordered that day. When the matter came back on for sentencing submissions on August the 24th, none of the parties were ready to proceed and an adjournment was sought. I heard the sentencing submissions on October 3, 2022. The defendant C.L. sought a section 34 report at that time with a view to seeking to persuade the court that this would be an appropriate case for an intensive support and supervision program for C.L. A section 34 report was ordered for C.L.

[2] I am still awaiting the section 34 report for C.L. Counsel for I.A. takes the position that the sentencing of I.A. need not proceed in lockstep with the sentencing of C.L. and a I agree. Accordingly, these reasons relate to the sentence for I.A.

[3] My written reasons for judgment detail the facts as I found them. I will not repeat all of them here. The complainant and I.A. and C.L. were at C.L.’s home on November 14th, 2020. Briefly stated, I found that both defendants put their penises in the complainant’s mouth without the complainant’s consent. I found that the complainant was too intoxicated to consent to the oral sex and, if she was not too intoxicated to consent, she did not consent to the oral sex. I found that the requisite mens rea was also made out against both of the defendants for the oral sex.

[4] I also found that I.A. penetrated the complainant’s vagina with his penis when she was too intoxicated to consent. As concerns C.L., I found that it was established that C.L.’s penis touched the complainant’s vagina although penetration was not proved beyond a reasonable doubt. I also found that C.L.’s mouth touched at least one of the complainant’s breasts. I found that the touching by C.L. of the complainant's vagina and her breast was also without her consent as she was too intoxicated to consent to this sexual contact.

Position of the parties

[5] The Crown seeks a nine-month custody and supervision order against I.A. In particular, they seek six months open custody with three months supervision. They also seek a period of 15 months probation, a DNA order and a s. 110 order for one year.

[6] The defendant I.A. seeks a sentence of probation only. It would appear that in the alternative, the defendant I.A. seeks a deferred custody order.

Sentencing under Youth Criminal Justice Act (“YCJA”)

[7] The law with respect to sentencing in youth cases is “completely different” than the law of sentencing in adult cases: R. v. Wobbes, 2006 ONCA 567. We have a separate legal and sentencing regime for young people because young people due to their age have heightened vulnerability, less maturity and a reduced capacity for normal judgment: see R. v. D.B. 2008 SCC 25 at para 41.

Principles of the YCJA

[8] S. 3 (1) (a) of the YCJA provides that 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 behavior

[9] Section 3 (1)(b) provides in part, that the criminal justice system for youths must be based on the principle of diminished moral blameworthiness or culpability and must emphasize:

(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;

[10] The court must also have regard to the goals and factors in section 3 (1) (c) of the YCJA.

The Purpose and Principles of Sentencing in Youth cases

[11] The purpose and principles of sentencing under the YCJA are set out in section 38. I will not set out all of this section here but I have had regard to all of section 38 in arriving at the sentence in this case.

[12] I note that section 38 (1) provides, in part, that the purpose of sentencing “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”.

[13] A youth sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult in similar circumstances (s. 38(2)(a)).

[14] The sentence must be similar to sentences imposed in the region on similar young offenders found guilty of the same offences committed in similar circumstances (s. 38(2)(b)).

[15] The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of young person (s. 38(2)( c)).

[16] 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 (s. 38(2)(d));

[17] The sentence must be the least restrictive that is capable of achieving the purpose set out in section 38 (1), it must be the one that is most likely to rehabilitate the young person and reintegrate him or her in society and it must promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community (s. 38(2) (e));

[18] The conditions of the sentence may be imposed only if they are necessary to achieve the purpose set out in section 38 (1), the young person must be reasonably capable of complying with the condition and the condition must not be a substitute for appropriate child protection, mental health or other social measures. (s. 38(2)(e.1));

[19] Specific deterrence and denunciation “may” be taken into account in a youth sentence. General deterrence is not to be considered in a youth sentence: s. 38(2)(f); see also R. P.(B.W.) , 2006 SCC 27 , [2006] 1 S.C.R 941 (S.C.C.) at paras 33-4.

[20] Section 38 (3) provides that in arriving at a youth sentence the court must consider the degree of participation by the young person in the offence; the harm done to victims and whether it was intentional or reasonably foreseeable; any reparation made by the young person; the time spent in detention by the young person as a result of the offence; the previous findings of guilt of the young person and any other aggravating and mitigating circumstances relating to the young person or the offence that are relevant to the purpose and principles set out in section 38.

Custody

[21] Section 39 is the so-called “gateway” to custody: see section 39(1)(a) to (d). It sets out the circumstances that must exist before custody can even be considered. The only potentially applicable pathway to custody in this case is section 39 (1) (a) which provides that “a youth justice court shall not commit a young person to custody under section 42 … unless (a) the young person has committed a violent offence”.

[22] Even if one or more of the provisions of section 39 (1)(a) to (d) is engaged, the court shall not impose a custodial sentence “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: see s. 39(2) of the YCJA.

[23] In my view, section 39 (1)(a) is engaged here. That section is engaged where a “violent offence” has been committed. “Violent offence” is defined under section 2 of the YCJA. It provides, in part, that a violent offence is one “that includes as an element the causing of bodily harm” or “an attempt or threat to commit an offence” involving bodily harm.

[24] In my view, the sexual assault that took place here caused bodily harm to the complainant. Indeed, I consider that “serious bodily harm”, which includes psychological harm, was caused to the complainant here. I will discuss this point further below when I consider whether a deferred custody order is available in this case. For my conclusion that what happened in this case was a “violent offence”, I rely on my conclusion and analysis below that serious bodily harm was caused here by the actions of I.A.

[25] Suffice it to say at this stage that I consider that the sexual assaults committed by each of the defendants were violent offences and custody is potentially available. However, as I have already said, even though I consider that a violent offence was committed here, that does not mean that custody is required: a youth court must still consider all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances.

Accountability

[26] The Ontario Court of Appeal has addressed the meaning of “accountable” in section 38 (1) of the YCJA. The court said in R. v. M.W. 2017 ONCA 22 at para 101 that “the accountability analysis necessarily involves a consideration of proportionality and rehabilitation with rehabilitation being “subject to” the proportionality principle”. In that same case, the court observed that “a central premise of an adolescent’s lesser maturity should affect the extent to which they are held accountable for criminal conduct” (see para 104). The court stated further in M.W. at para 103 that retribution reflects “the moral culpability of the offender having regard to the intentional risk taking of the offender, the consequential harm caused… and the normative character of the offender’s conduct… unlike vengeance, retribution incorporates a principle of restraint [and]… requires the imposition of a just and appropriate punishment and nothing more”. The British Colombia Court of Appeal has found that accountability under the YCJA requires a consideration of the “seriousness of the offence” but also requires the court to balance the rehabilitative needs of the young person with the other purposes and principles of sentencing: see R. v. S.N.J.S. 2013 BCCA 379 at para 29.

Deferred Custody Issue

[27] I note that section 42(2)(p) permits a deferred custody order. This is akin to a conditional sentence in the adult sentencing context. Importantly, a deferred custody order is not permitted where the youth is found guilty of a offence which “causes or attempts to cause serious bodily harm”: see s. 42(5). The Crown submits that a deferred custody order is not available here because serious bodily harm was caused. The defendant I.A. submits otherwise. I agree with the Crown’s position. A deferred custody order is clearly not available. I will explain why.

[28] “Bodily harm” is defined in section 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and is more than merely transient or trifling in nature”.

[29] The Supreme Court of Canada in R. v. McCraw , [1991] 3 S.C.R. 72 dealt with the meaning of “serious bodily harm” as it appeared under section 264.1(1) (a) of the Criminal Code. In that case, the Supreme Court found that a threat by one person to “rape” another person could, and in that case did, constitute a threat to cause serious bodily harm. The Court also said that “serious bodily harm” meant “any hurt or injury, whether physical or psychological that interferes in a substantial way with the integrity, health or well-being of a victim” (see page 88 of McCraw).

[30] Justice Wakefield of this Court in R. v. J.B. 2017 ONCJ 542 found that there was sufficient appellate authority as to the psychological consequences of sexual assault and especially forced intercourse such that serious bodily harm could be inferred (see para 19). He also relied on the victim impact statement in that case to conclude that there was serious bodily harm. See also the Ontario Court of Appeal’s decision in R. v. R.S . 2022 ONCA 123 at para 6.

[31] In this case, we have two defendants putting their penises in the mouth of the victim at about the same time. I.A. put his penis in the complainant’s vagina. This was all without consent. In this case the victim was too upset to give a victim impact statement saying “because it is too emotional”. She also testified at trial to taking therapy and to continuing to struggle with what had happened here. She also testified that the next day following the sexual assault she felt “dirty” and “wanted to be clean again”.

[32] I am unaware of any case of a serious sexual assault where our Court of Appeal has held there was not serious bodily harm. I have no doubt that I.A. caused the complainant “serious bodily harm” and that a deferred custody sentence is not available in this case. I infer serious bodily harm based on the specific points raised above and my assessment of the evidence as a whole.

Probation Cases in YCJA Sex Assault cases where Deferred Custody Unavailable

[33] The fact that a deferred custody order is not available does not mean that custody must be ordered. I do agree with the Alberta Court of Appeal in R. v. P.K.K. 2006 ABCA 196 that a heavier sentence (i.e. custody) should at least be considered where a deferred custody order is not available: see para 17 of the P.K.K. However, subsection 39 (2) and (3) are still controlling. The court cannot impose custody without considering all reasonable alternatives to custody raised at the sentencing hearing and it is not an error to order probation where a deferred custody order is not available.

[34] I note that there have been cases in which deferred custody has been found to be unavailable for a sexual assault but the courts have nevertheless imposed probation. For example, see R. v. A .. That case involved a sexual assault by a 15-year-old on a 12-year-old complainant where the 12-year-old was statutorily unable to consent. The court found that deferred custody was not available but nevertheless sentenced the defendant to probation.

[35] In R. v. C.Z. 2021 BCPC 25, a 16 year old defendant was found to have sexually assaulted a 14-year-old. The court did not expressly say that a deferred custody sentence was unavailable but did note that a number of courts in similar circumstances have said that it was unavailable. The defendant was indigenous and suffered from numerous disorders including fetal alcohol spectrum disorder. After a trial, both the Crown and the defence urged the court to impose a 24 month probationary sentence which the court did impose.

[36] In R. v. JAH 2016 MBCA 58 the Manitoba Court of Appeal dealt with a young offender who committed major sexual assaults on five young children. The court found that a deferred custody order was not legally available but imposed a three-year probationary sentence, largely due to the fact that the defendant was enrolled in a residential program for sex offenders (see para 35 and following). In effect, the defendant was in a highly supervised program which was similar to a conditional sentence in an adult context.

[37] In R. v. J.S. 2019 ONCJ 873, the court imposed a probationary sentence in a case involving incest from over 25 years earlier. The defendant was now an adult serving an adult sentence in a penitentiary for “similar offences”.

Custody in YCJA Sex assault cases

[38] On the other hand, numerous courts in Ontario have imposed custody for youths convicted of sexual assault. I will review some of those cases here.

[39] In R. v. R.S. 2022 ONCA 123 the Ontario Court of Appeal upheld a sentence of 12 months open custody and six-months supervision in a sex assault case. There were two victims in that case. The sex assaults involved anal intercourse involving a 15-year-old female victim and forced oral sex and anal intercourse involving a 14-year-old female victim.

[40] In R. v. T.B. 2013 ONCA 675 the Ontario Court of Appeal upheld a sentence of 12 months closed custody and supervision order and 12 months probation on a charge of sexual interference. The 17-year-old defendant had groped a 13-year-old complainant between her legs and grabbed her breasts. The victim was a total stranger. The defendant suffered from a severe conduct disorder that could lead to antisocial personality disorder as an adult. The Court of Appeal stated at paragraph 8 that “it is doubtful that any lesser disposition would have been effective in holding the appellant accountable while at the same time promoting his rehabilitation and reintegration into society as required by section 38 (1) of the Act”.

[41] In R. v. M.R. 2014 ONCA 484 the Ontario Court of Appeal upheld a sentence of 200 days in secure custody and 100 days of “community service” which I understand to be the supervision portion of the sentence to be served in the community. The sexual assault in that case was by a 16-year-old male and involved a 15-year-old female complainant. It involved non-consensual oral sex and anal sex. The defendant had, subsequent to the sexual assault, tried to paint the conduct as consensual and he tried to force the complainant into silence. The trial judge said that probation alone would not address the needs of rehabilitation, reintegration, specific deterrence and denunciation. The Court of Appeal found that the trial judge made no error in principle.

[42] In R. v. J. R.S. 2019 ONCA 852, the Court of Appeal dealt with a sexual assault case that involved anal and vaginal penetration. The Court of Appeal found that the imposition of a deferred custody order by the trial judge had resulted in an illegal sentence as serious bodily harm had occurred. The Court of Appeal held that that an appropriate sentence would have been 12 months custody and supervision but given the sentence already served imposed a 6 months and nine day custody and supervision order with two months being served in the community.

[43] In R. v. B.(A.) 2010 ONCJ 186, the Court imposed a 6 month custody and supervision order with 4 months being in open custody and 2 months under supervision in the community. The case involved vaginal penetration with the defendant’s fingers and penis although no ejaculation. The defendant was 16 years old and had no record and the complainant was 14 years old. The trial judge said that she was impressed with the supports the defendant had in the community and his accomplishments.

[44] In R. v. J.B. reported at 2017 ONCJ 284 (trial judgment) and at 2017 ONCJ 542 (sentencing judgment), Justice Wakefield of this court imposed a sentence of eight months open custody and four months community service for a sexual assault and forcible confinement. The sexual assault in that case involved non-consensual intercourse by a defendant who was just short of his 18th birthday. The complainant’s age is not clear from the reported decisions. Both the complainant and the defendant were under the influence of alcohol.

Application of the law to the Offender I.A.

[45] The PSR for I.A. was helpful in explaining to the court some of the background of I.A. By way of summary, I.A. is biracial and he was 16 at the time of the events. He has no criminal record.

[46] The victim was also 16 at the time of the offence. C.L. was 14 at the time of the offences. I.A. turned 18 in August 2022. I.A. will not be 20 at the time he is sentenced. Therefore, as I understand it, if he were sentenced to custody he would serve it in a provincial institution for youths not one for adults: see s. 89 of the YCJA. The Crown confirmed this position in the course of sentencing submissions.

[47] It is apparent that I.A. has suffered significant trauma, grief, abuse and disruption in his life. His mother appears to have been living with addiction and he has not seen her in seven years. He has the significant support of his father and grandmother.

[48] Sadly, I.A. is not on a good path in his life and if he does not change the course he is on, his life will likely get worse. He is not in school. He told the PSR author that he started selling drugs at age 15 to make money. He said that most of his peers are gang affiliated and drug dealers.

[49] I.A. stopped going to school in grade 9. He was frequently suspended by the school for fighting, truancy and a poor attitude. The school created an individualized education plan for I.A. but this was unsuccessful. I.A. knows he needs to make changes in his life but the author of the PSR said she was unclear as to his commitment in this regard. I share that concern. The PSR author observes that he clearly needs community programs, services and supports with an emphasis on services for African Canadian youth. I agree. The PSR author apparently recommends probation. I have no difficulty with her recommending probation for I.A. and I agree with that recommendation as far as it goes. However, it is not the role of the probation officer to determine what the sentence will be nor do I interpret the probation officer to be saying that the sentence should be probation and nothing more. The court is obligated to determine and impose the sentence and to follow the provisions of the YCJA in doing so.

[50] On the other hand, I accept the point the PSR author makes that I.A. has great strengths and has the potential to be a leader.

[51] This is a serious sexual assault by a 16-year-old male involving 16-year-old victim. It involved penetrating the victim’s mouth and vagina with I.A’s penis. C.L. participated at the same time making it worse in my view. As I have already explained, the actions of I.A. caused the victim serious bodily harm. I consider that I.A may not have intended to cause serious bodily harm but he was reckless in this regard. I note that I.A. was under the influence of alcohol at the time he committed the offence and I take that into account in arriving at the appropriate sentence. On the other hand, I note that there has been no remorse shown by I.A. although he did tell the court that he had changed a lot since he was 16 years old.

[52] My review of Ontario cases above demonstrates that the weight of judicial authority in this province for serious sex assaults by a youth have almost invariably imposed custodial sentence.

[53] In my view, a probation order alone would not be a proportionate response to the particular circumstances of the sexual assault in this case. Like the case of M.R. mentioned above it would not “properly address the needs of rehabilitation, reintegration, specific deterrence and denunciation”. I would add that it would also not properly hold I.A. accountable for his actions.

[54] I am aware that the court should not use custody as a substitute for child protection, mental health or other social measures and I do not do so here (s. 39(5)).

[55] I have considered all of the circumstances in arriving at a sentence in this case including I.A.’s youth at the time of the offence, the influence of alcohol on I.A.’s behaviour, his lack of a criminal record, his personal and challenging background including the trauma he has experienced, the support of his father and grandmother, as well as the offence itself and the sentences of other courts in similar cases (recognizing that no two cases are identical) and the impact on the victim.

[56] In my view the appropriate sentence is a custody and supervision order of 225 days. You are ordered to serve 150 days in open custody followed by 75 days supervision in the community followed by 12 months probation.

[57] If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of 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.

[58] The custody part of this sentence will come into force pursuant to s. 42(12) of the YCJA on October 31, 2022 when you shall surrender yourself into custody at […], Ontario. This placement location may change at the discretion of the Ministry of Children, Community and Social Services. The Placement Coordination Unit will connect with the assigned probation officer (Stephanie Miller), to confirm the placement location in advance of the October 31, 2022 date.

[59] You may request a review of your sentence under section 94 (3). I make no judgment now as to whether there will be grounds to review your sentence.

[60] There will be a DNA order to be taken in custody. There will be no weapons for one year pursuant to section 51(1).

[61] All of the provisions in section 97(1) shall form part of the custody and supervision order. In addition, there will be no contact with the complainant in this case, directly or indirectly.

[62] A probation order of 12 months will follow the custody and supervision order. The terms of the probation order will include the following:

• keep the peace and be of good behavior.
• you will appear before the court when required to do so.
• you will report in person to a youth worker within two working days from your release from custody and after that at all times in places as directed by the youth worker or anyone designated by the youth worker to assist you in your supervision.
• you will live at a place approved by a youth worker and not change that address without obtaining the consent of the youth worker in advance.
• you will have no contact, directly or indirectly, with the complainant in this case.
• you will not possess any weapons as defined by the Criminal Code.
• you will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your youth worker and to complete them to the satisfaction of the youth worker. The youth worker should have regard to the presentence report recommendations as concerns counselling.
• during the period of probation you shall attend school or make best efforts to obtain employment or do volunteer work all under the supervision of your youth worker; and
• you shall perform 50 hours of community service to the satisfaction of your youth worker.

[63] Those are my reasons for sentence in this case.

Released: October 14, 2022 Signed: Justice Paul F. Monahan