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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. N.R., 2023 ONCJ 169

DATE: 2023 04 18

COURT FILE No.: Windsor 19-LEY-8601

BETWEEN:

HIS MAJESTY THE KING

— AND —

N.R.

Before Justice S. G. Pratt

Reasons for Sentence released on 18 April 2023

Megan Cleland.................................................................................... Counsel for the Crown

Kenneth Marley.............................................................................. Counsel for the Offender

REASONS FOR SENTENCE

Pratt J.:

[1] On 27 September 2022, following a trial, I found N.R., hereinafter the Offender, guilty of all counts in information 19-LEY-8601. I have heard sentencing submissions from the parties and had the benefit of a Pre-Sentence Report (PSR) and several Victim Impact Statements. These are my reasons for sentence.

Facts

[2] The facts as I found them are set out in detail in my trial decision and I will not repeat them at length in these reasons. In summary, I found that the Offender, at the age of 14, sexually assaulted his 7-year-old niece on multiple occasions. This abuse included inviting her to touch his penis, touching of her vagina, oral sex, and forced vaginal intercourse. The first incident occurred at a park while the others took place at the Victim’s residence.

Kienapple Application

[3] The counts in the information overlap each other to varying degrees. Counsel agree that I should conditionally stay counts 1, 4, and 7. I agree. Those counts will be stayed conditionally. This sentencing will be in relation to counts 2, 3, 5, 6, and 8.

The Positions of the Parties

[4] For the Offender, counsel seeks a sentence of deferred custody under the Youth Criminal Justice Act (YCJA) in the range of six months. In the alternative, should this Court find a deferred custody sentence is unavailable, counsel recommends a community-based sentence such as probation.

[5] The Crown argues that a deferred custody order is not available as the offences of which the Offender has been found guilty are ones where he has caused bodily harm. The Crown seeks a sentence of 12 months custody, served as 8 months custody and 4 months community supervision. This would be followed by two years’ probation. The Crown also seeks a DNA order and a weapons prohibition under s. 51(3) of the YCJA.

The Pre-Sentence Report

[6] A PSR was prepared by Probation Officer Chris Podolinsky. It disclosed that the Offender lives with his mother K.S. in Leamington. They have a good relationship. The Offender’s father passed away in 2019.

[7] The Offender has completed high school and now works two jobs: he works in the dietary department of […] Retirement Residence and as a screener at […] Retirement Home. His mother works at the […] Retirement Home as a personal support worker.

[8] While they previously enjoyed a close relationship with Ms. S.’s daughter Ay.G. and her family, that has changed since these charges arose. Unsurprisingly, there has been considerable tension in the family since these offences were disclosed. The PSR noted that Ms. G.’s son sends “hateful messages” over social media to the Offender. One such message was provided to me by counsel.

[9] The Offender is considering starting college. He is not yet sure what he might study.

[10] The Crown pointed out that nowhere in the PSR does it state the Offender shows any sort of remorse for his actions. That is true. In fairness, however, it appears he may never have been asked. The Court frequently sees the phrase, “With regard to the offences before the court…” in a PSR. That is missing from this report. If the Offender wasn’t asked how he felt about the offences, I think it would be unfair to criticize him for not answering. A lack of remorse is not an aggravating factor in any event.

[11] Overall, I would classify the PSR as somewhat positive. The Offender has completed high school and has the support of his mother. He is employed. He is considering post-secondary education. There is no concern, according to his mother, with alcohol or drug abuse.

Victim Impact Statements

[12] The Crown filed a bound volume of Victim Impact Statements. I received statements from Ay.G., H.G., G.G., and An.G. I also received a Victim Impact State­ment from the Victim, E.G.

[13] That these offences have had a massive impact on the G. family is abundantly clear. The statements speak of anger, fear, guilt, and anxiety. Ay.G’s words about the victimization of her daughter and the toll that has taken on her family were powerful. An.G’s statement poignantly summed up the effect these offences have had on the entire family. She said:

I have been put into therapy twice now because of the distress one person has on me. However, what affects me worse, is seeing how it has affected my family. Seeing my father crying on the floor saying how he failed as a father, seeing my brother bawling his eyes out because he trusted N., seeing my moms guilt of him being her blood, and seeing E. try so hard to keep her smile.

[14] Any form of child sexual abuse would be difficult for a family to withstand. When that abuse comes from a fellow family member, the wounds it causes are even deeper.

[15] I had the benefit of hearing E. deliver her statement on video. She is intelligent and eloquent beyond her years. She strikes me as the sort of person who, when faced with difficulty, simply gets on with it. I applaud her focus and positivity. But I also call on her family to continue supporting her as she grows. You will all need each other in the coming years.

[16] Before I move on from the Victim Impact Statements, I want to say one last thing. Neither E. nor any of her family did anything wrong in this situation. It’s entirely understandable to feel guilty when a child in your care becomes a victim, but by all the evidence I heard, I see no way you could have expected this to happen. Family members should trust each other. In trusting the Offender, you did what anyone in your situation would have done. This is not on you, in any way.

Principles of Sentencing

[17] The sentence in this case is governed by the YCJA. Section 3(1) sets out the declaration of principle that underpins the rest of the Act. It reads, in part:

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;

[18] Section 38 of the YCJA sets out guiding principles specific to sentencing. A sentence should hold a young person accountable with meaningful consequences while promoting the young person’s rehabilitation and reintegration into society. That focus, Parliament reasons, will contribute to public safety in the long term.

[19] Sentences under the YCJA must be proportionate to the seriousness of the offence and the responsibility of the offender. Further, all available sanctions other than custody must be considered. Any sentence must be the least restrictive option available that is reasonable in the circumstances.

[20] The YCJA prioritizes rehabilitation and reintegration. Those are not, however, the only goals of youth sentencing. A youth sentence may also serve to denounce unlawful conduct and deter the young person from committing further offences.

[21] Section 38(3) sets out relevant considerations for a youth justice court when fashioning a 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.

[22] In the present case, paragraphs (a), (b), and (e) are particularly relevant. The Offender was solely responsible for the offences he committed, and it was easily foreseeable, even for a 14-year-old, that his actions could cause harm to the Victim. At the same time, he comes before this Court with no prior findings of guilt.

[23] What does accountability mean in the context of a youth sentencing? My learned brother Justice Blacklock considered this question in the case of R. v. J.M. [2004] O.J. No. 2796 (C.J.) at paragraphs 25 and 26:

In my view, the meaning of what it is to hold a young person "accountable" within the meaning of s. 72 is informed by how that concept is used in s. 38 of The Youth Criminal Justice Act. The language used in s. 38.1 reminds us that the purpose of The Youth Criminal Justice Act is to hold young persons "accountable" in a particular way, namely a young person is to be held accountable through the imposition of "just sanctions" that have "meaningful consequences" and that promote rehabilitation and reintegration into society.

Thus, in my view, when one is considering whether or not a youth sentence would be sufficient to hold a young person accountable within the meaning of s. 72, the youth sentence, to be acceptable, must not only be long enough to reflect the seriousness of the offence before the Court and the accused's role in it. But it must also be long enough to provide some reasonable assurance of the accused's rehabilitation to the point where he can be safely be reintegrated into society.

[24] The Court of Appeal for Ontario has likened accountability in the youth context to the principle of retribution in the adult context (see: R. v. A.O. 2007 ONCA 144, [2007] O.J. No. 800 (C.A.) at paragraph 46).

[25] In summary, I must fashion a sentence that is meaningful and holds the Offender accountable for his actions, but I must also recognize the diminished level of moral blameworthiness present in all young people. The sentence must focus on his rehabilitation and reintegration into society.

Aggravating and Mitigating Factors

[26] The aggravating factors in this case are not hard to find. The Victim was a seven-year-old child. The Offender is a family member in a place of trust. There were multiple instances of abuse. The offences did not result from one isolated lapse in judgment but continued on over a number of months.

[27] Further, the abuse escalated from the Offender showing the Victim his penis and inviting her to touch it, to touching the Victim’s genitals, to forced oral sex and, ultimately, to forced intercourse.

[28] In mitigation, the Offender comes before the Court with no prior record. He is a high school graduate who has the support of his mother. He is gainfully employed at two retirement homes. From what I have heard and what I have read in the PSR these offences appear to be out of character.

Analysis

[29] The first question to be answered is whether these offences qualify for a custodial sentence under the YCJA. Section 39 of the Act excludes custody as a possible sentence unless certain criteria are met. The offence in question must be a violent offence, the offender must have a history of breaching court orders, the offender must have committed a serious indictable offence and has a history that shows a pattern of findings of guilt, or it must an exceptional case where a non-custodial sentence would not meet the sentencing principles set out in s. 38.

[30] In the present case, it is agreed that the Offender has been found guilty of violent offences. Custody is therefore an available sentencing option. I must, of course, still consider if any other sanctions that are less restrictive could be reasonable in the circumstances.

[31] Counsel for the Offender seeks a deferred custody and supervision order of six months. That is the maximum permissible length for such an order. The Crown argues that such a sentence is not legally available given the nature of the underlying offences.

[32] Section 42(5) of the Act states as follows:

(5) The court may make a deferred custody and supervision order under paragraph (2)(p) if

(a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and

(b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.

[33] There are two hurdles to surmount before a deferred custody and supervision order can be made. The offence cannot be one where serious bodily harm is caused or attempted, and the order must be consistent with the sentencing provisions of the Act.

[34] It is acknowledged that, physically, no serious bodily harm was inflicted on the Victim. The issue is whether that is the only relevant question. Can serious bodily harm extend beyond physical injury? If it can, how does that apply to the present case?

[35] The Court of Appeal for Ontario and the Supreme Court of Canada have provided guidance and direction on this issue. Firstly, in the case of R. v. C. (K.) 2011 ONCA 257, Justice Simmons said the following at paragraph 21 and onward:

The term "serious bodily harm" is not defined in the YCJA. However, under s. 2(2) of the YCJA, "[u]nless otherwise provided, words and expressions used in [the YCJA] have the same meaning as in the Criminal Code".

In R. v. D. (C.); R. v. K. (C.D.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, Bastarache J. observed that the Criminal Code meaning of the term "serious bodily harm" was determined in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69. He said, at para. 20, that he saw no reason why that definition should not also be used for purposes of the definition of serious violent offence in the YCJA:

In R. v. McCraw, [citation omitted] Cory J., writing for a unanimous Court, relied on this definition of "bodily harm", as well as the dictionary definition of "serious", to interpret the meaning of "serious bodily harm" for purposes of s. 264.1(1)(a) of the Criminal Code as it was worded before February 15, 1995. Specifically, Cory J. held that "serious bodily harm" is "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant" (p. 81). I see no reason why this definition of "serious bodily harm" should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of "serious violent offence" that is found in s. 2(1) of the Act.

[36] Justice Simmons quoted Justice Cory in R. v. McCraw 1991 CanLII 29 (SCC), [1991] 3 S.C.R.72, who summarized the point at paragraph 23:

In summary the meaning of "serious bodily harm" for the purposes of the section is any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant.

[37] Lastly, my brother Justice Doody had this to say at paragraph 25 of R. v. P.I. [2018] O.J. No. 2576 (C.J.):

Consequently, a deferred custody order is not available where the young person has caused "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant".

[38] It is a settled issue that serious bodily harm can include psychological harm. I agree with counsel that had Parliament wanted to include psychological harm in the definition of serious bodily harm they could have done so. That they haven’t is not dispositive. I am guided and bound by the pronouncements of higher courts. The Court of Appeal and the Supreme Court have made it clear that psychological harm is included in the definition of bodily harm. If an offender causes or attempts to cause serious psychological harm, he or she cannot receive a deferred custody and supervision order.

[39] Turning to the facts of this case, I find that E. suffered serious psychological harm at the hands of the Offender. E. was seven years old when she was abused. In the months and years that followed, she has had trouble sleeping, she has become fearful, she has experienced hair loss, and she’s started therapy to deal with her feelings. That these offences have interfered in a substantial way with her psychological integrity, health, or well-being, as stated by Justice Cory in McCraw, supra, is an inescapable conclusion.

[40] A deferred custody and supervision order is therefore not available in this case. That being so, I need not consider if such an order would be consistent with the principles set out in s. 38.

[41] In considering the remaining sentencing options, I remind myself again that custody should not be imposed if there are other reasonable sanctions that could meet the goals of YCJA sentencing. As counsel correctly pointed out, just because custody is available under s. 39, it is not mandatory.

[42] I have given this case much consideration. The Offender was 14 years old at the time of the offences. He is now 18 and has had no other issues with the justice system. He has graduated from high school and is employed. He has plans for the future and is amenable to counselling if it is ordered.

[43] I must balance those factors against his repeated sexual victimization of his seven-year-old niece. A little girl who saw him as a trusted family member. He betrayed that trust in the most heinous way possible, on multiple occasions. He also betrayed the trust of the rest of the family, who left E. in his care at the park and at their home. His actions have taken something E. can never get back: her innocence. No child should ever have to endure an examination at a Sexual Assault Treatment Centre, or have to tell stranger after stranger what her uncle did to her.

[44] In my view a non-custodial sentence would not hold the Offender accountable for his actions. A non-custodial sentence would not be a meaningful consequence. It would not sufficiently denounce unlawful conduct or deter the Offender. Even keeping rehabilitation and reintegration top of mind, a non-custodial sentence would not be appropriate for offences of such gravity.

[45] In 2019, the Supreme Court of Canada considered how courts should treat sexual offences against children. The case of R. v. Friesen 2020 SCC 9, [2019] S.C.J. 100 has significantly changed how these offences are punished. The decision of Justice Wagner (as he then was) and Justice Rowe begins with this simple but powerful observation:

Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.

[46] The following passage, at paragraph 60 of Friesen, is especially relevant to the present case:

Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim (see "The 'Statutory Rape' Myth", at p. 292).

[47] There are many passages from Friesen that I could quote. The overarching ratio of the decision is that sentencing courts should treat child sexual abuse more seriously than they have been. Sentences should be harsher given the inherent wrongfulness of the act and the damage it invariably causes.

[48] I pause to recognize that Friesen was an adult. The Offender in the present case was himself a child when he committed these offences. That is a crucial difference that must be reflected in the sentence I impose. Still, the principles enunciated by the Supreme Court, particularly regarding the harm caused by child sexual abuse and society’s evolving understanding of the insidiousness of these offences, remain important. That these offences were committed by a child offender does not mitigate the harm caused to the child victim.

[49] The case of R. v. D.H. [2014] O.J. No. 2475 (C.J.) is factually somewhat similar to the case at bar. There, the offender was the victim’s cousin. He began abusing the victim when she was six years old. The abuse continued until she was 11, when she disclosed the situation to her mother. The offender was 13 at the start and 18 at the time of disclosure. The conduct included kissing, genital touching, oral sex, and a failed attempt at penetration. By the time of trial, the victim was 22 years old. The impact this abuse had, and continued to have, on her was clear to the sentencing judge. The offender was sentenced to 9 months custody followed by 18 months probation.

[50] I note that D.H. was decided five years before Friesen.

[51] The Crown seeks a sentence of 12 months custody and 2 years probation. Given the circumstances of these offences, that is not an unreasonable position. I must, however, remember the principles of the YCJA. I must put rehabilitation and reintegration at the forefront of the sentence.

[52] After balancing the many competing interests in this case, I have come to the conclusion that a fit sentence is a custody and supervision order of 10 months. This will be followed by 12 months probation. That sentence will be concurrent on each count.

[53] Pursuant to s. 42(4) of the YCJA, I state the following:

[54] You are ordered to serve 200 days in custody, to be followed by 100 days to be served under supervision in the community subject to conditions.

[55] 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.

[56] You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you 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.

[57] Probation will include the following conditions, in addition to the statutory terms:

(1) Report in person to a youth worker within 3 working days of your release from custody and after that, at all times and places as directed by the youth worker or anyone designated by your youth worker to assist in your supervision.

(2) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means, with E.G., An.G., G.G., H.G., or Ay.G.

(3) Do not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know them to be except for required court attendances.

(4) Do not be in the company of or communicate directly or indirectly, by any physical, electronic or other means, with males or females under the age of 12 years, unless in the presence of another person approved of in writing and in advance by the youth worker.

(5) Do not possess any weapons as defined by the Criminal Code.

(6) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the youth worker and complete them to the satisfaction of the youth worker.

[58] In addition, there will be a weapons prohibition under s. 51(3) of the YCJA for a period of two years. There will also be an order that the Offender provide a sample of his DNA to the Ontario Provincial Police for inclusion in the National DNA Databank.

[59] I will waive the victim surcharges on all counts.

[60] I do not impose this sentence lightly. There are no winners in this case. I wish all parties the best in the future. My hope is that the entire family can ultimately move forward in a positive direction.

Released: 18 April 2023

Signed: Justice S. G. Pratt