WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 06 24 COURT FILE No.: Sault Ste. Marie Y-1330016
BETWEEN:
HIS MAJESTY THE KING
— AND —
H.K., a young person
Before: Justice Heather-Ann Mendes
Heard on: March 27, 2023 Reasons for Judgment released on: May 1, 2023 Sentencing Submissions heard: March 25, 2024 Sentencing Released: June 24, 2024
Counsel: Robert Skeggs............................................................... counsel for the Crown Jessica Belisle................................................ counsel for the defendant H.K.
MENDES J.:
BACKGROUND
[1] On May 1, 2023 I found H.K. guilty of one count of failing to comply with a condition of his recognizance, keeping the peace and being of good behaviour contrary to section 811 of the Criminal Code and in committing a sexual assault, did choke, suffocate or strangle A.O., contrary to section 271(1)(c.1) of the Code.
[2] A presentence report as well as a Gladue Report was ordered on May 1, 2023, and the matter was adjourned for sentencing submissions. The date of July 19, 2023, was set for submissions.
[3] H.K. has Indigenous ancestry from his maternal side through Batchewana First Nation and he was unable to speak to his experiences as an Indigenous person and had no further details regarding his background. As such the Gladue Report could not be prepared.
[4] This by no circumstances means that H.K. is not an Indigenous person or that he has not experienced relevant Gladue-related issues. This information was outlined in the letter from Aboriginal Legal Services to the court dated July 7, 2023, filed as Exhibit 6 at the sentencing hearing.
[5] The pre-sentence report was not completed for the sentencing hearing date in July and so the matter was adjourned to September 2023. The sentencing report was completed on September 29, 2023, and was not reviewed with H.K. in advance. After counsel reviewed the report with H.K., counsel requested that a section 34 psychological assessment be ordered.
[6] While the Crown was ready to proceed with sentencing submissions on September 29, 2023, both counsel agreed that a psychological report would be of assistance to the court prior to sentencing, and so the matter was adjourned to November 7, 2023.
[7] The section 34 psychological assessment was completed on November 6, 2023, and was only provided to the court, and so counsel were not in a position to proceed with the sentencing hearing on November 7, 2023. As such further dates were canvassed and the sentencing submissions were adjourned to January 11, 2024.
[8] The sentencing submissions could not proceed on January 11, 2024, due to an emergency with defence counsel and so the date for submissions was adjourned again and scheduled for March 25, 2024.
[9] The sentencing submissions proceeded on March 25, 2024, and the court reserved its decision. On April 2, 2024, the date of June 24, 2024, was set for the release of this sentencing decision.
EVIDENCE AT TRIAL
[10] The only evidence called at trial was that of the victim A.O.
[11] The circumstances of the offence were that A.O. and H.K. were in a relationship for about a month to month and a half. On November 21, 2021, A.O. was sleeping over at H.K.’s home. Around 4:00 a.m. they were lying on his bed in his room in the basement watching a movie. H.K. attempted to pull A.O.’s pants and underwear off and she said “no” and pulled her pants back up. About 15 minutes later, H.K. again attempted to remove A.O.’s pants and again she said “no” but H.K. continued and A.O. could not get her pants back up.
[12] H.K. was laying over A.O. and there were pillows and blankets on the bed that were on top of her head, and he was applying pressure to the pillows and blankets which were over her head, with his body, while trying to remove the rest of A.O.’s clothes.
[13] A.O. kept saying “no” and fighting while her head was covered but she got to the point that H.K.’s body weight was too heavy, and she could not get him off her and so she gave up and H.K. had vaginal sexual intercourse with her.
[14] After the intercourse ended A.O. removed the blankets and said to H.K. “what the hell, why do that, I told you no” and went upstairs to lay on the couch. She could not sleep as she was scared that he was going to come upstairs or that his mum or sister would come downstairs and ask her why she was there. After an hour she went back down to the bed and the next morning they both acted like nothing happened.
[15] After the incident, the two took a break from dating. A.O. had a problem with H.K. not taking responsibility for his actions regarding the incident, so eventually the two broke up. A.O. in her evidence confirmed that she did not sustain any injuries and she did not seek any medical assistance after the assault.
PREVIOUS RECORD
[16] H.K. does not have any previous involvement with the Youth Justice System.
VICTIM IMPACT STATEMENT
[17] A.O. completed a victim impact statement which was filed as Exhibit 1 at the sentencing hearing. In the victim impact statement A.O. sets out that she has relived the events of that night for over two years and because of the incident she has difficulty maintaining relationships as she feels like it is going to happen again.
[18] A.O. has suffered from anxiety, stress, depression and has difficulty sleeping at night. A.O. also attends counselling resulting from her anxiety and depression, stemming from this incident, and she is prescribed medication for depression.
PRESENTENCE REPORT & PSYCHOLOGICAL ASSESSMENT
[19] The presentence report dated September 29, 2023, was filed as Exhibit 2 at the sentencing hearing.
[20] Over the course of H.K.’s life he had several medical and psychological assessments completed. Some as early as four years old in and around 2008 with SickKids Hospital due to difficulties focusing and oppositional behaviour. Then again in 2012 at Algoma Family Services to clarify diagnostic issues and assess his learning needs.
[21] H.K. also spent a period of time in the Child and Adolescent Psychiatric Unit at the Sault Area Hospital in and around 2012 where he was stripped of all medication and placed on new medications. H.K. is presently still prescribed medication, and despite this, he does admit to consuming marijuana daily.
[22] Further assessments were completed at Algoma Family Services between 2012 and 2014 and in 2017 H.K. was seen by a Developmental Pediatrician through Holland Bloorview Kids Rehabilitation Hospital in Toronto for a medication consultation regarding issues with aggression, running away, being argumentative as well as school issues. Behavioural intervention, community supports, and medication recommendations were made for H.K.
[23] H.K. was involved with the Community Crisis Response team from Sault Area Hospital in July 2017 and was admitted to the Sault Area Hospital Child and Adolescent Mental Health Unit due to increased impulsivity, self harm and suicidal ideation. In the fall of 2017, a psychological assessment was again completed for H.K. with the Holland Bloorview Kids Rehabilitation Hospital.
[24] H.K. has an extensive history with the Children’s Aid Society commencing in January 2009 when he was four years old; then again from August 2011 to November 2011; January 2012 to December 2013; February 2014 to March 2014; March 2017 to May 2017; July 2017 to December 2018 and May 2019 to March 2020.
[25] The presentence report highlighted that H.K.’s upbringing was somewhat unstable and there appeared to be a lot of conflict between his parents while growing up. H.K. witnessed abusive relationships experienced by his mother and he also suffered abuse from his mother’s partners.
[26] Further, H.K. would bounce around from home to home and would reside between his father’s home, his paternal grandmother’s home, and his maternal grandmother’s home, as well as his mother’s home and his grandmother’s neighbour’s home. Notwithstanding the numerous transitions between homes, H.K.’s family remains extremely supportive of him and tries to assist and accommodate his living arrangements as required.
[27] On February 1, 2022, H.K.’s mother tragically passed away in a car accident driving to Parry Sound in a snowstorm. H.K. blames himself for his mother’s death as she was driving her boyfriend to a rehabilitation facility when the car crash occurred and had H.K. been living with her at the time, he would have tried to stop her from driving that day.
[28] H.K. struggles with not following rules at home; not keeping curfew; removing items from the home without permissions and maintaining a poor peer group. That being said, his family reports that he is helpful at home with mowing the lawn, shoveling snow, cooking and picking up after himself. H.K.’s family is very supportive of him and continues to support him.
[29] H.K. has received services and supports from The Children’s Aid Society of Algoma; THRIVE Child Development Centre; Community Living Algoma; Algoma Family Services and the Indigenous Friendship Centre.
[30] H.K. struggled in school but he is committed to completing his high school credits and he enrolled in Kina Awiiya Secondary program in September 2023. H.K. has also held various employment positions but at the time of the report, he was not working and was actively seeking a job.
[31] During the preparation of the presentence report H.K. was cooperative, although he continued to deny the allegations against him and showed no remorse towards the victim. That being said, he was agreeable to reporting and following recommendations as may be made, including attending counselling.
[32] A section 34 psychological assessment report was prepared for the court on November 6, 2023, and filed as Exhibit 3. The report confirmed that H.K. is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD); Pervasive Developmental Disorder also known as Autism Spectrum Disorder; childhood Bipolar Disorder with hypomanic episodes; Learning Disorder; Anxiety Disorder and Oppositional Defiant Disorder.
[33] The report also confirmed that H.K. received supports from various community services providers over the years including Community Living Algoma; THRIVE Child Development Centre; Algoma Family Services; SickKids as well as behavioural interventions, counselling, therapy, and he was prescribed a variety of medications throughout his life to help him with his mental health and behavioural challenges.
[34] The psychological assessment also set out that in interviews H.K. did not accept that the assault happened and alleged that the complainant made up the allegations.
[35] The psychological assessment echoed the presentence report which stated H.K. experienced high conflict between him and his parents or caregivers which resulted in him frequently changing homes due to his aggressive and challenging behaviours. In addition, the report also stated that H.K. was exposed to domestic violence between his mother and her partners and he experienced abuse himself at the hands of his mother’s partners.
[36] The assessment further set out that H.K. had significant difficulties since childhood in developing social skills as well as achieving emotional regularity resulting in conflict with and aggression towards others, making it difficult to develop friendships.
[37] The assessor noted during the assessment and testing that H.K. was cooperative and appeared to place appropriate effort into tasks presented. There were no obvious signs of anxiety, abnormalities, or unusual behaviour. It was noted: “However, H.K. evidenced little insight into his psychological difficulties and his reasoning was akin to someone much younger.”
[38] Further, the assessment stated that H.K.’s intellectual profile indicates that “he has exceptional weakness in his general thinking and reasoning abilities.” He learns much more slowly than others his same age and he will have exceptional difficulties with problem solving and reasoning. As well, given the significance of childhood adversity, H.K. also meets the criteria for other specified trauma and stress related disorder, persistent response to trauma with PTSD-like symptoms.
POSITION OF THE CROWN AND DEFENCE
[39] The Crown is seeking a period of custody and supervision for H.K. for 6 months, 4 months closed, and 2 months supervision based on the 2/3 and 1/3 split followed by a period of probation of 2 years, as well as ancillary orders, namely a section 51 weapons prohibition order for 2 years and DNA.
[40] The Crown suggests that the reports prepared for the court, namely the presentence report and psychological assessment suggest close supervision is appropriate for H.K.
[41] The Crown set out the aggravating factors as being: (1) Intimate partner violence given that A.O. and H.K. were in a relationship at the time; (2) H.K. was convicted by this court of committing a violent crime, that being suffocation while committing a sexual assault; (3) The degree of harm done to A.O. and what she experiences now, in terms of anxiety and depression as a result of the incident; (4) The lack of remorse or insight by H.K. as evidenced in the presentence report and psychological assessment.
[42] The defence submits that the psychological harm in the victim impact statement does not rise to the degree of serious bodily harm. As such, an appropriate sentence is that of deferred custody.
[43] The defence further submits that if I do find that there was serious bodily harm, it would be appropriate to sentence H.K. to 2 years probation given his unique and exceptional circumstances as outlined in both the presentence report and psychological assessment.
[44] The defence takes no issue with the proposed section 51 weapons prohibition order for 2 years and DNA order sought by the Crown.
LEGAL PRINCIPLES
[45] Young people in Canada are sentenced in an entirely different manner than adults. The Supreme Court of Canada stated in R. v. D.B. [1] “that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.” 2
[46] Section 3(1) of the Youth Court Justice Act (“YCJA”), sets out the principles to be applied during sentencing. The youth justice system is intended to protect the public by holding young people accountable for their conduct, via sanctions that are proportionate to the seriousness of their offence and their individual degree of responsibility.
[47] The YCJA is intended to emphasize sanctions that address rehabilitation, reintegration, and fair and proportionate accountability. Sanctions imposed on young people should also reinforce respect for societal values and encourage the repair of harm done to specific victims of the community at large.
[48] The Supreme Court of Canada also set out in D.B. that “the YCJA is rife with sentencing provisions designed to protect young persons from custody, noting in particular that sections 38 and 39 of the YCJA also restrict when custody is available. Before sentencing a young person to custody, the court must: (1) Believe that no reasonable alternative or combination of alternatives exist (s. 39(2)); (2) Know that the previous use of a non-custodial sentence does not preclude another non-custodial sentence (s. 39(4)); (3) Recognize that custody must not be a substitute for appropriate child protection, mental health or other social measures (s. 39(5)); (4) Consider a pre-sentence report and any sentencing proposal made by the young person or the counsel present (s.39(5)); (5) State reasons why a non-custodial sentence is inadequate (39(9)); (6) Require that the principles set out in section 3 of the YCJA govern sentencing (s. 38(2)); (7) Ensure that the sentence is not greater than might be afforded an adult under the same circumstances (s.38(2)(a)); (8) Consider all available sanctions other than custody first (s.38(2)(d); and (9) Ensure that the sentence is the least restrictive one capable of holding the young person accountable, subject to proportionality concerns (s.38(2)(e)). 3
[49] Youth sentences must be the least restrictive sanctions that are capable of achieving the purpose of sentencing set out in section 38. They must be the most likely to rehabilitate the young person and reintegrate him into society. Further, they must promote a sense of responsibility in the young person, and an acknowledgment of the harm caused by his offending.
[50] Additionally, a youth court judge may choose to emphasize principles of denunciation and specific deterrence when fashioning a fit sanction (see 38(2)(f)).
[51] Jail is not always an available sanction in the youth context. The YCJA limits the availability of jail, or secure/open custody, as it is referred to, to certain classes of offender, those who committed a violent offence by causing, attempting or creating a likelihood of serious bodily harm; failed to comply with multiple non-custodial sentences; has a proven pattern of offending, typically demonstrated by at least three findings of guilt or extrajudicial sanctions; or committed an exceptional non-violent offence in circumstances that are so shocking as to threaten widely-shared community values such as child abduction; arson; or accessory after the fact to murder.
[52] Even where the young person has committed a violent offence, section 39(2) requires that 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 ... that is in accordance with the purpose and principles set out in section 38."
[53] Factors which may be considered are set out in section 39(3), and include alternatives to custody that are available, the likelihood that the young person will comply with a non-custodial sentence, and alternatives to custody that have been used in respect of other young persons in similar circumstances. Section 39(9) dictates that, where a custodial sentence is imposed, the court shall state the reasons why a non-custodial sentence is not adequate to achieve the purpose set out in section 38(1).
[54] At the end of the day, the court is tasked with imposing sanctions which will sufficiently hold the young person accountable, while at the same time promoting the key sentencing principle of rehabilitation and the important goal of reintegrating the young person at the earliest opportunity.
ANALYSIS
[55] This case clearly involves intimate partner violence as A.O. and H.K. were in a relationship at the time, and this is statutorily aggravating. There is no question that the offence rises to the standard of a violent offence as H.K. did, in committing a sexual assault, suffocate A.O. with blankets and pillows with his body weight and pressure applied to her while he engaged in vaginal sexual intercourse.
[56] Given that I am satisfied that H.K. has committed a serious violent offence, a sentence of deferred custody and supervision is not an available sentence. A case like this would typically be appropriate for a sentence of closed custody and supervision, however, this specific case is distinguishable from those presented by the Crown with respect to the unique and exceptional circumstances arising from H.K.’s life.
[57] The YCJA does not define “unique or exceptional circumstances”, however the Manitoba case of R. v. Dzinic [4] is instructive: “Exceptional circumstances exists where there are multiple mitigating factors of significance. Those most commonly relied on include strict bail conditions, a guilty plea, cooperation with authorities, health issues, personal circumstances, family concerns, Gladue considerations as well as demonstrated rehabilitation. Other factors include the age of the offender, a lack of criminal record, the passage of time since the commission of the offence, as well as the nature of the offence and the need for a deterrent sentence. The manner of the circumstances underlying the commission of the offence may be a factor as well, if there was something highly unusual or exceptional about it.”
[58] These unique and exceptional circumstances in relation to H.K. are highlighted in both the presentence report and psychological assessment as follows: (1) H.K. had a very difficult childhood growing up, he witnessed his mother experience domestic violence at the hands of her various boyfriends; (2) H.K. also experienced abuse and violence at the hands of his mother’s boyfriends; (3) H.K. has a long history of emotional and behavioural challenges, in addition, he struggles with learning challenges; (4) H.K. is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD); Pervasive Developmental Disorder otherwise known as Autism Spectrum Disorder; childhood Bipolar Disorder with hypomanic episodes; Learning Disorder; Anxiety Disorder; Oppositional Defiant Disorder; (5) H.K. was brought into the care of the Children’s Aid Society of Algoma on multiple occasions and has been the subject of an open file from 2009 when he was 4 years old; then again from August 2011 to November 2011; January 2012 to December 2013; February 2014 to March 2014; March 2017 to May 2017; July 2017 to December 2018 and May 2019 to March 2020; (6) H.K. has bounced from home-to-home living with his mother; father; maternal grandmother; paternal grandmother; neighbours and friends; (7) His mother passed away tragically in a motor vehicle accident in a snowstorm driving her boyfriend to a rehabilitation facility and H.K. blames himself for her death; (8) H.K.’s family is highly supportive of him; (9) H.K.’s scoring on his psychological assessment confirms that he has exceptional weakness in his general thinking and reasoning abilities; he learns much more slowly than others his same age and has exceptional difficulties with problem solving and reasoning. H.K. meets the criteria for an Intellectual Developmental Disorder or Intellectual Disability; (10) H.K. is an Indigenous male and cannot articulate his Indigenous ancestry. (11) There is no evidence before the court that H.K. presents a risk to reoffend or that he suffers from any deviant sexual behaviour. (12) H.K. was cooperative and participated appropriately during the preparation of both the presentence report and psychological assessment.
[59] While it was repeatedly raised that H.K. lacks insight and has shown no remorse regarding his actions, the psychological assessment clearly stated: “H.K. evidenced little insight into his psychological difficulties and his reasoning was akin to someone much younger and that H.K.’s intellectual profile indicates he has exceptional weakness in his general thinking and reasoning abilities.” He learns much more slowly than others his same age and he will have exceptional difficulties with problem solving and reasoning. I find that it is for this reason that H.K. lacks the insight into what he did; how it impacted A.O. and why he may continue to deny it occurred.
[60] While H.K.’s circumstances separately or individually may not constitute unique and exceptional circumstances, when considered in totality and in combination with one another, this specific constellation of circumstances, constitute unique and exceptional circumstances.
[61] As such, I cannot find that a period of closed custody followed by open custody is going to adequately address the principles of sentencing in this matter. I find that what is required for this specific youth, in this specific case, is an extended period of probation to ensure he accesses appropriate services and supports. This will help H.K. remain accountable in words and actions and allow those who care for him, his supportive family, to collaborate in the probation and be a part of the process.
[62] This sentence meets the objectives of sentencing in YCJA matters given the presumption of diminished moral blameworthiness as constitutionally recognized as a principle of fundamental justice as the Supreme Court of Canada has reminded us.
[63] Further, a sentence of probation contemplates the fact that H.K. is an Indigenous male who is disconnected from his community and culture. I recognize and accept that H.K. cannot speak to, articulate or detail his Indigenous heritage given the separation and removal from his community which many Indigenous people have experienced in our country.
[64] Lastly, this sentence accounts for H.K.’s youthfulness and diminished moral capacity while achieving the goal of rehabilitation, meaningful consequences, and denunciation of the unlawful conduct.
SENTENCE
[65] With that, the sentence that I see fit, given all of the circumstances is that of probation for a period of 2 years. The terms of probation are as follows: (1) Keep the peace and be of good behaviour & appear before the Youth Justice Court when required to do so by the court; (2) Report in person to a youth worker within three business days 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; (3) Cooperate with your youth worker. Sign any releases necessary to permit the youth worker to monitor your compliance and must provide proof of compliance to your youth worker; (4) Live at a place approved by the youth worker and not change that address without obtaining the consent of the youth worker in advance; (5) For the first six months of this order, be in your residence daily between the hours of 9:00 p.m. and 6:00 a.m. (6) Thereafter for the balance of the probation order, obey a curfew as set by the youth worker in consultation with your guardian; (7) Exceptions to the curfew are for medical emergencies; travelling directly to, from and while at work; educational or other programs approved by your youth worker and with prior written permission of your youth worker; (8) You shall not contact or communicate in any way directly, indirectly or by any physical electronic or other means with A.O.; (9) Do not be within 100 metres of any place you know A.O. to live, work, go to school, frequent or any place you know her to be, except for required court attendances; (10) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the youth worker including but not limited to: psychiatric or psychological issues; bereavement/grief issues; life skills and the adolescent sexual offender program; (11) You shall sign any release of information forms as will enable your youth worker to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and (12) You shall provide proof of your attendance and completion of any assessments, counselling or programs as directed.
[66] I am prepared to grant the ancillary orders requested and agreed upon by defence, that being a section 51 weapons prohibition order for 2 years and DNA which is to be taken today at the courthouse.
[67] For the reasons already outlined, I find that this sentence meets the objectives of the YCJA, as this sentence is rehabilitative and is reasonable given the exceptional and unique circumstances of H.K.’s life.
Released: June 24, 2024 Justice H.A. Mendes Ontario Court of Justice