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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

CITATION: R. v. S.A., 2024 ONCJ 663

DATE: 2024 12 17

COURT FILE No.: BRAMPTON 20-Y313

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.A., a young person

Before Justice P.T. O’Marra

Heard on November 21, 2024

Reasons for Judgment released on December 17, 2024

Aimee Gauthier................................................................................... counsel for the Crown

Michael Bartlett...................................................................... counsel for the accused S.A.

P.T. O’Marra, J.:

Introduction:

[1] On November 21, 2024, S.A. pleaded guilty to the sexual assault of J.A., contrary to section 271 of the Criminal Code of Canada (the “Code”). The offence occurred in Burlington and Brampton between May 21, 2014, and January 31, 2020. After I heard the sentencing submissions that day, I reserved my judgment on the sentence and adjourned the matter until December 17, 2024.

[2] The Crown proceeded by Indictment.

[3] S.A. is now an adult. He is 22 years old. J.A. is 21 years old.

[4] These are the reasons for my decision regarding the appropriate sentence for S.A.

[5] The Crown suggested that I sentence S.A. to custody for six (6) months, followed by two (2) years probation.

[6] Counsel for S.A. suggested that I place him on probation.

[7] 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 (the “YCJA”) for two (2) years.

The Offence:

[8] The facts that support the plea are as follows:

(1) In 2005, S.A.’s mother and her ex-husband adopted S.A. and his biological sister, J.A. Both siblings suffer from Fetal Alcohol Spectrum Disorder (“FASD”) and Attention Deficit Hyperactivity Disorder (“ADHD”).

(2) In 2009, their parents divorced. At the time, J.A. went to reside with her mother, and the couple’s oldest daughter, K.A. S.A., continued to live with his father. Over the years, J.A. visited her father regularly and spent weekends at this residence.

(3) Sometime in and around 2013, when J.A. was approximately 11 years old, she would visit her father’s residence in Burlington.

(4) During these visits, S.A. started to kiss her in the pool house. This escalated to S.A. having vaginal intercourse with her. J.A. was uncertain when the penetration started but stated that it occurred frequently when she stayed at her father’s residence.

(5) The last incident occurred in her father’s current residence, located in Brampton, in January 2020.

(6) On this occasion, when her father was not at home, S.A. pulled J.A. onto the floor from the couch and had sexual intercourse with her.

(7) The victim told the police that throughout the years, she had tried to resist his advances and had repeatedly informed him that she did not want him to touch her anymore. However, S.A. ignored her pleas and forcefully overpowered her.

(8) On May 8, 2020, S.A. was arrested for sexual assault of J.A. He was placed on an Undertaking.

The Victim Impact:

[9] Both J.A. and her mother submitted Victim Impact Statements. Their Statements were read out loud in court. I have included both in their entirety. They read:

J.A.:

J.A.’s mother:

S.A.’s Background and Circumstances:

[10] Much of the information and family history is derived from submissions from counsel and the psychological risk assessment report prepared by Dr. Giorgio Ilacqua.

[11] S.A. is single and has no dependents. Since he was charged, he has lived in the Peel Youth Village (“PYV”). PYV offered comprehensive support and assistance through its staff, aiding residents in various aspects of their lives. S.A. actively participated in five programs per week aimed at fostering independence. He moved out to live independently. He is currently living in Covenant House but has been homeless for approximately for a month in the past.

[12] S.A. committed the offence when he was approximately 13 until he was 18 years old.

[13] S.A. does not have a youth court record.

[14] As previously mentioned, S.A. grew up as a foster child alongside his two sisters. His father was an office worker, while his mother worked from home.

[15] S.A.'s foster parents separated when he was 8 or 9 years old.

[16] While growing up, S.A. was an aggressive and troubled child, both as a perpetrator of bullying and a victim. As a result of his behaviour, he was suspended from school on multiple occasions.

[17] S.A. has completed his high school education. He was enrolled in a special needs program, which took him seven years to complete. He graduated in January 2023.

[18] S.A. has only held one job, and that was in the Summer of 2016 when he worked in his father’s warehouse.

[19] S.A. receives ODSP benefits due to his mental disabilities. S.A. is diagnosed with ADHD, OCD and FASD. His ADHD causes him to exhibit high energy levels, and he struggles to remain still, often tapping his fingers or toes. His anxiety has also contributed to his anger issues, although he is also better at managing his anger.

[20] Regarding his OCD, S.A. experiences distress when items are not in their designated places, preferring “an organized mess” where everything has its spot. S.A. adheres strictly to routines and finds comfort in familiarity, becoming unsettled by deviations from established routines.

[21] S.A.’s FASD diagnosis stems from his biological mother's prenatal alcohol consumption. The FASD impacted his growth and caused learning difficulties during his youth. S.A. feels that the effects no longer significantly impact him.

[22] For the past 11 years, S.A. has taken Foquest alongside Risperidone to treat his ADHD and his anxiety. There have been slight adjustments in his medications since he was charged.

[23] S.A.’s relationship with his father was fraught with tension due to S.A.’s anger management issues. Currently, their relationship is better since S.A. does not reside in the home. They frequently speak.

[24] According to his father, S.A. demonstrated persistent hyperactivity that was challenging to manage. He disregarded parental instruction and engaged in behaviour without regard for consequences. His actions were driven by immediate gratification rather than consideration of the long-term outcomes.

[25] His father thinks that due to the influence of the COVID-19 pandemic, his son has made notable changes in his demeanour. He has observed a reduction in S.A.’s anger, an increased level of understanding, and an increased level of engagement in conversation.

[26] S.A.’s future includes enrolling in college and becoming a carpenter.

[27] The psychologist observed that based on his evaluation of S.A., it was not felt that S.A. presented with psychological characteristics generally associated with the deliberate intent to harm others.

[28] When asked to comment on the charge, S.A. acknowledged the misconduct in his actions. He conveyed a sincere willingness to amend his behaviour. He also admitted that if he had been given an opportunity to revisit the past, he would have chosen a different course of action.

[29] In assessing S.A.’s psychological profile based on the psychometrics administered, S.A.’s personality profile did not identify any psychological concerns.

[30] S.A. did not present with any significant clinical symptoms that are detrimental to his well-being, nor did he present with any active violent thoughts.

[31] It is positive to note that S.A. was willing and motivated to attend individual psychological therapy, has been compliant with the medication regimen and enjoys the support of his father.

[32] The psychologist observed that S.A.’s level of risk for future sexually violent offences and behaviours did not identify any significant areas of concern, as evidenced by the Sexual Violence Risk-20 (SVR-20).

[33] S.A. did not present with any measurable high-risk factor to be involved in the legal system in the foreseeable future.

[34] The psychologist believes that S.A.'s risk remains low with appropriate monitoring, structure, and interventions for the dynamic factors identified in the report.

[35] However, S.A.’s potential risk factors are predominantly dynamic; psychometric testing identified that the areas of risk seem to be the lack of recreational structure and unemployment.

[36] S.A.’s protective factors from the risk of re-offending are his father and psychotropic medication compliance. When the report was prepared, a further protective factor was the support from the residence staff. However, that is no longer in place since S.A. has been occasionally homeless and living in shelters.

[37] The psychologist made the following recommendations:

1. S.A. should participate in individual counselling sessions to gain insight and awareness into his actions in relation to the current charges.

2. S.A. should not have interactions with underage females.

3. S.A. should participate in supervised programs to support his well-being and development. The issues that should be identified and addressed are general courtship ideas, the ability to socialize and recognize social cues, and the ability to have a sufficient understanding of sexual anatomy and functioning.

4. S.A. should find ways to use his time in a pro-social manner with regular and frequent community contacts such as volunteering.

The Guiding Principles in the YCJA:

[38] The preamble of the YCJA states that Canadian “society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences, and effective rehabilitation and reintegration that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. In R. v. K.O.M., 2017 ONCA 106, the Court, at para. 31, indicated that “a sentence which holds the young offender accountable must reflect, as does a retributive sentence, the moral culpability of the offender and the harm caused.”

[38] Section 3 of the YCJA sets out its declaration of principles. This declaration refers to rehabilitation and reintegration but also refers to the protection of the public.

[39] According to the YCJA, I must consider all sentencing options that are appropriate in the circumstances. The issue in this case is whether I should impose a custodial disposition.

[40] I must consider section 39(1) of the YCJA. It provides that:

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.

[41] None of the paragraphs (b), (c) or (d) apply. Therefore, I can only sentence the young person to custody if I find that he committed a "violent offence." In section 2(1) of the YCJA, the definition of "violent offence" is stated as:

(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

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[42] Bodily harm is not defined in the YCJA, but 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 Code as “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.”

[43] Sexual assault qualifies as serious bodily harm given that “any hurt or injury, whether physical or psychological, interferes in a substantial way with the physical or psychological health or comfort of the complainant.” See R. v. McCraw, 1991 29 (SCC), [1991] 3 SCR 72 at para. 23. In R. v. JAH, 2016 MBCA 58, the Manitoba Court of Appeal adopted the definition from McCraw and added: “In our view, it is beyond reasonable dispute that perpetrating major sexual assaults against young children causes them to suffer serious bodily harm.”

[44] Since the offence is one that caused or attempted to cause serious bodily harm, a deferred custody and supervision order is precluded by section 42(5) of the YCJA.

[45] Youth court justices have held that the usual sentence for serious sexual assaults by young persons would be a custodial sentence. My colleague, Justice P. Monahan of the Ontario Court of Justice, held precisely that in R. v. I.A., 2022 ONCJ 490 at para. 52:

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

[46] Justice Doody adopted the unavailability of a deferred custody and supervision order in R. v. P.I., 2018 ONCJ 324.

[47] However, these cases did not involve young offenders with special needs and cognitive difficulties, like S.A.

[48] In R v KL, 2023 ABCJ 180 at paras. 25-26, the youth court judge held that it is only in exceptional circumstances where only a probationary sentence would be appropriate:

I respectfully disagree with the comment in JR [2016 ABPC 265] that probation is the typical sentence for young sexual offenders. Where there is serious bodily harm to the victim which includes psychological harm, particularly with child victims and there is almost always serious psychological harm as the Supreme Court said in Friesen which may often be more pervasive and permanent in its effects than any physical harm, in such circumstances the YCJA makes deferred custody unavailable. The prevailing authorities suggest that is because, in such cases, such a sentence would be inadequate. If deferred custody is inadequate, common sense dictates probation would be even more inadequate and not a fit or proper sentence as stated by the Court of Appeal in PKK [2006 ABCA 1].

There appears to be one exception to this and that is where there are unique and/or exceptional circumstances as already discussed. It seems to me the appropriate sentence comes down to examining such circumstances in this case to determine if they are so unique or exceptional to deviate from the norm and impose a lighter sentence of probation. …

[49] Custodial sentences in sexual assault cases are the norm and reflect “society's growing understanding of the pernicious long-term psychological damage that childhood sexual abuse causes to people.” See R v JGHW, 2020 MBCA 86 at para. 17.

[50] Since the statutory definition has been established, I am entitled to consider the imposition of a custodial sentence. However, I am bound to consider all reasonable alternatives to custody before incarcerating a young person. Parliament has set out the principles and factors in section 38(2) of the YCJA that must be considered in fashioning a fit and appropriate sentence. 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.

[51] Sentences in youth court must "be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence," s. 38(2)(c); and "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). In order to comply with s. 38(2)(c), the sentence must:

(i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(1);

(ii) be the one that is most likely to rehabilitate the young person and reintegrate them 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; see s. 38(2)(e).

[52] Further, a youth sentence, subject to s. 38(2)(c) may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences: see s. 38(2)(f), which was added to s. 38(2) as a result of the 2012 amendments to the YCJA. General deterrence as a sentencing principle continues to have no place in determining an appropriate youth sentence, even for violent offences. See R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941 at paras. 33 and 34.

[53] Although s. 38(2)(f) added the sentencing principles of denunciation and specific deterrence, general deterrence was not added and remains excluded as a factor to be considered during a youth sentencing.

[54] A youth court sentencing judge must consider the following factors in determining the appropriate sentence, pursuant to s. 38(3):

(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.

Analysis:

[55] The thrust of the sentencing regime under the YCJA is that there are options other than custody to be given priority, and custody is the last resort: see R. v. J.S., 2006 22101 (ON CA), [2006] O.J. No. 2654 at para. 45.

[56] There are 17 sentencing alternatives under section 42(2) of the YCJA. The custody and supervision order is the 14th sentencing option under subsection (n). In all, the YCJA allows for three types of custody and supervision orders to be imposed: open, secure, or deferred: see R. v. D.W., 2011 NLCA 21.

[57] There are alternatives to open or closed custody that are reasonable and appropriate for holding S.A. accountable for his offence. These alternatives would provide meaningful consequences while also considering his unique circumstances.

[58] I also recognize that as a 22-year-old offender, pursuant to section 89 of the YCJA, if I imposed an open or closed custody sentence, S.A. will “be committed to a provincial correctional facility for adults to serve the youth sentence.” In my view, serving a sentence with other adult offenders is not necessary to deter S.A.: see R. v. J.D., [2021] O.J. No. 1762 at para. 102.

Aggravating and Mitigating Factors:

[59] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate.

[60] The aggravating factors can be found in the facts of the offence itself. In assessing these, I am mindful of the list of factors proposed in R. v. Friesen, 2020 SCC 9, [2019] SCJ No. 100, including the following:

(1) Likelihood to re-offend.

(2) Duration and frequency.

(3) Age of the victim.

(4) Degree of physical interference.

[61] Dr. Ilacqua’s risk assessment report indicates that S.A. is unlikely to re-offend if appropriate measures, such as counselling, are implemented. It is important to note that S.A. has been under a release order for 55 months, during which there have been no new allegations of criminal behaviour or violations of that order.

[62] S.A.'s father has noticed a reduction in S.A.'s anger and an increased understanding of the consequences of his actions. This is promising for his rehabilitation.

[63] The offence took place frequently over approximately six years.

[64] With respect to the age of the victim, the offence started when she was 11 years old and ended when she was 18 years old. At the time, S.A. was two years older. J.A. was particularly vulnerable due to her cognitive difficulties. This was a significant breach of trust. As an older brother, S.A. was expected to take care of his sister, watch out for her, and not sexually assault her.

[65] The extent of physical interference in this case represents the highest degree of violation of her sexual integrity. See Friesen at para. 138. The victim was repeatedly vaginally penetrated without her consent.

[66] The impact on the victim and her mother has been utterly devastating and remains deeply profound.

[67] Regarding the mitigating factors in this case, I have reached the following conclusions.

[68] S.A. pleaded guilty to this offence. Although the plea occurred approximately four and a half years after his arrest, he has accepted responsibility and shown genuine remorse. In my opinion, the most critical aspect of the plea is that it eliminated the need for a trial and spared J.A. from having to testify. The Crown indicated that, given J.A.'s personal circumstances, reconstructing the events for a trial would have been a complicated task.

[69] I acknowledge that the delay in resolving this matter was also due to a change in counsel. However, the new counsel arranged for the preparation of a psychological assessment, which played a crucial role in bringing this matter to a close.

[70] Although there was a statement in the report that could be seen as denying criminal accountability, S.A. accepted his responsibility for the offence and clearly understood the consequences of his actions. Additionally, S.A. read from a prepared statement during his allocution to the court, expressing regret for his actions and acknowledging that he had damaged any respect J.A. had for him and his family. He admitted that his actions were "terribly wrong" and expressed a strong desire to take everything back.

[71] S.A. has no prior criminal record.

[72] S.A. has been subject to a release order and has not committed any breaches.

[73] S.A. is considered a low risk to re-offend.

[74] S.A. has the support of his father.

[75] While he faced this charge, S.A. completed his high school education. He aspires to attend college and become a carpenter.

[76] After considering the factors set out in sections 39(2) to (5) and the principles as set out in section 38(2) of the YCJA, and despite the prevailing case law, I am satisfied that a custodial sentence is not warranted in these unique and exceptional circumstances.

[77] S.A. was diagnosed with FASD, ADHD and OCD, which may have played a role in this offence. The report confirmed that the effects of FASD were more pronounced in his youth, leading to delayed growth and learning difficulties.

Conclusion:

[78] In conclusion, S.A. has taken significant steps in rehabilitation by completing his high school diploma and managing his cognitive difficulties, impulsivity, and anxiety with prescription medication. Whatever sentence I impose, I am obligated to consider S.A.’s rehabilitations. S.A. is 22 years old and has future scholastic and vocational goals. S.A. does not have a previous youth court record. He has not demonstrated a pattern of violent behaviour or failed to comply with court orders. He has complied with his bail order of four and a half years without any transgressions. Finally, according to Dr. Ilacqua, there is a low risk of S.A. re-offending.

[79] Despite the serious nature of the offence that S.A. committed on a vulnerable victim and based upon the rehabilitative steps and lack of criminal antecedents, there is a reasonable alternative to the imposition of a custodial sentence, and that is two years of probation. I am satisfied that this sentence will promote S.A.’s rehabilitation and will be in keeping with the principles of the YCJA.

[80] S.A. will be subject to the following conditions while on probation:

(1) Keep the peace and be of good behaviour.

(2) Appear before the youth justice court when required to do so.

(3) Report in person to a youth worker immediately and thereafter as directed.

(4) Live at a place approved by the youth worker and not move from that address without the prior permission of your youth worker.

(6) Attend and actively participate in all assessments, counselling, or rehabilitative programs as directed by the youth worker, including but not limited to all the programs recommended in Dr. Ilacqua’s psychological assessment report, and complete them to the satisfaction of the youth worker.

(7) You shall sign any release of information forms to enable the youth worker to monitor your attendance at and completion of any assessment, counselling, or rehabilitative programs.

(8) Do not communicate in any way, either directly or indirectly, by any physical, electronic, or other means with J.A.

(9) Do not attend within 100 metres of any place you know J.A. to live, work, go to school, or know her to be.

(10) Do not associate or communicate with anyone that you know has a youth court or adult criminal record.

(11) Attend an educational and vocational program approved by the youth worker and complete them to the satisfaction of the youth worker.

(12) Make reasonable efforts to seek and maintain suitable work approved of by the youth worker unless your youth worker determines that it would not be feasible considering the counselling and treatment programs.

(13) Perform 100 hours of community service. This work is to commence on January 1, 2025, and shall be completed at a rate of not less than 10 hours per month. You shall complete the work as directed by and to the satisfaction of the youth worker. You shall complete all your community service within 12 months.

[81] There will be an order under section 51 of the YCJA prohibiting S.A. from possessing any weapons for two (2) years.

[82] There will also be an order authorizing the taking of samples of bodily substances for DNA analysis; sexual assault is a designated offence pursuant to section 457.051 and section 487.04 of the Criminal Code. S.A. shall provide a sample within 60 days from today’s date.

[83] There will be an order that copies of the psychological assessment shall be given to the youth worker.

Released: December 17, 2024

Signed: Justice P.T. O’Marra