Warning: Non-Publication and Non-Broadcast Order
The court hearing this matter directs that the following notice be attached to the file:
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.
Warning: Youth Criminal Justice Act Provisions
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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-03-28
COURT FILE No.: Thunder Bay 21-Y4210111-03
BETWEEN:
HIS MAJESTY THE KING
— AND —
D.S., a young person (or “young persons”)
Before Justice M. G. March
Heard on February 3 and 13, and March 20, 2025
Reasons for Sentence released on March 28, 2025
Counsel for the Crown: Ms. D. Wood
Counsel for the Defence: Mr. M. Hargadon
Reasons for Sentence by M.G. March J.
[1] On February 3rd, 2025, D.S., a young person within the meaning of the Youth Criminal Justice Act (“YCJA”), pleaded guilty before me to a single count of sexual assault, contrary to section 271 of the Criminal Code. At the time of the commission of the offence, on or about November 26 or 27, 2022, D.S. was 15 years of age. His victim was an incapacitated, 17-year-old young woman, E.C.
[2] The circumstances of the offence were nothing short of horrific. In an Agreed Statement of Facts filed upon the sentencing of D.S., the Court learned that the victim, E.C., after copious consumption of alcohol and marijuana, found herself outside the room of a local motel clad only in a sweater and leggings.
[3] Her underwear and other clothes were missing. Next to her was a blanket and microwave. The latter was soiled with vomit. She had no memory of how she arrived at the motel and what occurred while she was there. Days later, E.C. became aware at her school that videos of what had been done to her at the motel on the night in question were circulating on social media.
[4] When she saw the videos, she was able to identify one of her assailants, B.G. A short while later, E.C. courageously went forward to police to complain about what happened to her.
[5] Police uncovered through investigation six video clips depicting five young males involved in a sexual assault upon E.C. D.S. was amongst them. Ultimately, police sent to the Centre of Forensic Sciences the leggings she wore the morning she awoke outside the motel. In the crotch area, semen was detected.
[6] A young male, B.G., who E.C. was able to identify in the video clips, was matched to a DNA profile of the semen found in the crotch area of the leggings. D.S.’s profile was excluded as a possible contributor.
[7] Notwithstanding, D.S. was identified as one of the participants in the sexual assault upon E.C. In one particular video clip, he is seen fondling her breast and touching her unclothed buttocks while she was in a state of incapacitation.
[8] Upon my review of the video clippings, it is clear that D.S. was an active participant in a group sexual assault on E.C. In addition to his touching of her private areas mentioned above, he was joking and encouraging all his friends to engage in similar behaviour. He made derogatory remarks about her such as:
- a) “How many fucked her that night?”
- b) “She doesn’t know how I was.”
- c) “This is her room tonight.”
- d) “She can wake up and say - where am I?”
[9] Further, he is depicted pushing B.G. into the shower of the motel room where E.C. is naked. He issues the command, “Get the fuck in their B.” D.S. also rallies the other four young men to join in a group picture of what is occurring. He then has his phone out in front of them all, seeming to take a photograph of the event.
[10] The Crown’s position on sentence was for a four to six month Custody and Supervision Order pursuant to section 42(2)(n) of the YCJA for the role played by D.S. in sexually assaulting E.C., to be followed by an 18-month period of probation.
[11] His treatment of E.C., the Crown submits, was egregious. The ongoing offence he perpetrated upon her was serious. His conduct must be denounced through the deprivation of his liberty. It is the one form of disposition which would promote the greatest sense of responsibility in D.S. and would bring about in him an acknowledgement of the harm done. The fallout from the event was catastrophic for E.C. It had a significant and profound impact on E.C., the student body where D.S. and she attended classes, and the community at large. A hard lesson must be taught to D.S, the Crown contends.
[12] By way of ancillary dispositions, the Crown asks for a DNA order seeking to have a bodily sample taken from D.S., a weapons prohibition for a period of two years, and a forfeiture order for the cell phone, possibly used by him to photograph and record E.C. in her state of undress. I pause to note that the security on his phone could not be defeated when forensically examined.
[13] Crown counsel emphasized that the guilty plea entered by D.S. did not happen until the first day of what was to be his trial. In other words, it was offered extremely late in the day. The serious psychological and emotional harm done to E.C. in consequence of the offence committed upon her is highly aggravating, the Crown argues.
[14] E.C. also suffered serious bodily harm. When she mustered the courage to go to the police a few days after the incident to make a report, she was still experiencing vaginal soreness. Crown counsel thus contended that a Deferred Custody and Supervision Order (“DCSO”) is not available as a sentencing option for D.S.
[15] The Crown conceded that the presentence report (“PSR”) prepared for D.S.’s benefit at his sentencing was positive. He has no youth court record. He is clearly remorseful for what he did to E.C. He has strong support within his community. He has good rehabilitation prospects. He is gainfully employed and intent upon pursuing a trade. He suffered a tough upbringing out of which he seems to have emerged well and is becoming a productive member of society.
[16] The defence seeks a non-custodial disposition for D.S. of two years’ probation. He cautioned against lawyers and judges importing adult sentencing principles into the youth regime.
[17] He emphasized that sentencing under the YCJA is “purely, individually focused”. Section 38 of the Act articulates the purposes and principles of sentencing youths. There is an aspect of punishment, which is a “functional fact”, but not an aim of the statute. The proportionality principle also applies under section 38(2)(c) of the YCJA.
[18] Further, s. 38(2)(e) is mandatory. The sentence must be the least restrictive that is capable of achieving the purposes and principles of sentencing set out in the YCJA. It must be the one that is most likely to rehabilitate the young person and reintegrate him into society, and to promote a sense of responsibility in the person, and an acknowledgement of the harm done to the victim or the community.
[19] By contrast, section 38(f) of the YCJA is permissive. The sentence imposed may denounce unlawful conduct and may deter the young person from committing an offence. General deterrence has “nothing to do with youth sentences”, as defence counsel emphasized.
[20] In an unreported decision, which I gave orally on February 10, 2025 involving another youth, D.M., who was a party to the sexual assault committed upon E.C., I relied upon the decision of my colleague, Camara J. in R. v. T.M., 2024 ONCJ 257 to find that I had a DCSO open to me as a sentencing tool under s. 42(2)(p) of the YCJA.
[21] Defence counsel contended that T.M. was wrongly decided. I acknowledge that it is presently under appeal to the Court of Appeal for Ontario.
[22] In short, the submission of the defence is that a DCSO cannot be imposed where a young person causes or attempts to cause serious bodily harm. In R. v. C.D., 2005 SCC 78, the Supreme Court of Canada settled upon a definition of “violent offence” as one which involves an element of either threatening to, attempting to, or causing bodily harm to a victim.
[23] Indeed, the YCJA was then amended to define “violent offence” as such. The gateway to the imposition of a DCSO can be opened if this Court declines to find that D.S. specifically threatened, attempted or caused serious bodily harm to E.C.
[24] The essence of the harm caused to E.C. was psychological, the defence submits. It resulted from the distribution of the video taken within the motel room of what was being done to her. However, D.S. had no knowledge of, nor participation in the decision taken by one of the young males to distribute the video.
[25] Defence counsel contends that D.S. was not a party to the sexual assault upon E.C. by one of the young men, B.G., who accompanied her into the shower of the motel room. D.S.’s sexual assault involved touching her breasts and buttocks. Since D.S. did not aid or abet B.G.’s sexual acts perpetrated upon E.C., he is eligible for a DCSO, because he did not threaten to, nor attempt to, nor cause bodily harm to E.C.
[26] Furthermore, D.S.’s PSR is extremely positive. He is sincerely remorseful and has respected conditions of bail for over two years. He has clearly demonstrated himself to be a person who can comply with a DCSO or a probation order.
[27] As a gainfully employed young man, he is capable of paying restitution. He can also perform 80 hours of community service. Further, he would willingly undergo any assessment and counselling for appropriate sexual behaviours directed by his probation officer, and would sign any releases to ensure he engages in it to the probation officer’s satisfaction.
[28] Defence counsel adds that D.S. is an anxious young man by his very nature. This offence has hung over his head like Damocles’ sword. When his own mother, a person who has long struggled with substance abuse issues, attempted to extort him by asking for money from him in order for her to continue on as his surety, he acted responsibly. He reported the incident to his lawyer. A substitute surety was then found and arranged for him.
[29] A collateral consequence of being charged, which D.S. suffered, was his expulsion from school. He did not complete high school as a result.
[30] In sum, D.S., it is submitted, recognizes that what he did was “a stupid thing”. It was out of character for him. He wishes to put this whole affair behind him as quickly as possible.
[31] When I called upon D.S. to speak at the conclusion of sentencing submissions by Crown and defence counsel, he wished to directly address the mother of E.C., who was present in court. He spoke of how he thinks about what happened to her daughter every day. He is extremely apologetic for the role he played in abusing her. He wants to put things right again. He hopes E.C. will be able to have a good life, and that she will be able to forgive him someday.
[32] As I turn my mind to the sentence I must fashion for D.S., I begin with a review of the declaratory principles set out in section 3 of the YCJA. I have a fundamental duty to protect the public by holding young people accountable through measures that are proportionate to the seriousness of the offences committed by them and their degree of responsibility for them.
[33] I must also promote the rehabilitation and reintegration of D.S. into society. I must support him in preventing the further commission of crimes by referring him to programs or agencies in the community to address the circumstances underlying his offending behaviour. I do not know how this matter has dragged on as long as it has over a period greater than two years, but it seems the delay has inured to D.S.’s benefit. I agree with his counsel that, to a large extent, he is genuinely remorseful for what he did to E.C., and he has conducted himself in a prosocial way ever since. Time appears to have been on D.S.’s side. I must, of course, also look to all available sanctions other than custody that are reasonable in the circumstances. The sentence the Court must impose also has to be the least restrictive, while being capable of achieving the overarching principles and purposes of sentencing set out in subsection 38(1) of the YCJA.
[34] The PSR chronicles the tragic life D.S. has led. On September 18, 2021, D.S. lost his father to a fentanyl overdose. His father was only 42 years old. D.S. has struggled with the passing of his father. They were very close, and he loved him very much. Then in 2021, shortly after his father’s death, D.S. lost both grandparents, with whom he was close as well. Sadly, they passed away within a month of one another.
[35] D.S. grew up poor and spent most of his young life living in a trailer park. As previously mentioned, D.S.’s mother still uses substances, but forgivingly, he loves her very much. His mother candidly admitted to the author of the PSR that her relationship with her son was, at times, strained because of her tortured past.
[36] She reported that her son was always well behaved. He was a “sensitive type”, more prone to cry than to yell or to act out. She feels he has not dealt with his father’s death, and she would like to see him receive some form of therapeutic assistance. For his part, D.S. just wants his mother to get the help she needs.
[37] D.S. remembered being left alone and unsupervised for large tracts of time as a child. He is insecure, and “overthinks”, by his own assessment. He struggled in school and was often absent, even though his teachers described him as “a joy to have in the classroom and a pleasure to teach”. After his father’s passing, he rarely attended school again. He is trying to complete his education online.
[38] Prior to the sexual assault upon E.C., D.S. fell in with a “bad crew”. He started drinking alcohol and smoking marijuana to excess. Fortunately, everything changed after the incident which brings him before this Court. He stated to his mother that he was “very drunk” on hard alcohol during the commission of the crime upon E.C.
[39] At present, he busies himself in his work at a roofing and sheet metal business where he has been employed since July 2023. He no longer uses marijuana, and very rarely drinks alcohol. Only occasionally after a shift will he have a drink with coworkers.
[40] D.S. emphasized for the author of his PSR that he wants to “keep his head down and concentrate on himself” to achieve his goals. They include owning his own home, a truck and a boat, and having a good relationship with his intimate partner. He wants to be “comfortable in life” and “happy”. He sees himself as being on the correct path now and in a “good place”.
[41] The PSR author identified the Children’s Centre of Thunder Bay as a facility which provides intensive treatment programs for youths who have been charged and convicted of committing sexual offences. The author found D.S. to be “very polite, respectful and forthcoming”. She regarded him as having taken responsibility for the role he played in the offence. He described himself as “very disappointed” in his conduct. He would not wish that kind of treatment upon anyone. He hopes E.C. is doing well now.
[42] His motto appears to be making his deceased father proud of him by being a hard worker, and by being more honest with people. He takes pride in the fact that he has “straightened out” since the incident.
[43] The author of the PSR identifies his criminogenic risk factors as a lack of prosocial activities, his peers and family factors. To a great extent, D.S. is to be credited for having addressed these issues and removed negative influences from his life on his own.
[44] My focus, as a sentencing judge, is not solely placed on D.S.’s personal circumstances. Equally, I must recognize the inhumane treatment E.C. received at the hands of the five youths who took evil advantage of her at the time of her incapacitation, video recording her abuse and changing her life as a result, as well as the lives of her mother and brother too.
[45] Eloquently, E.C.’s mother, K.S.B., spoke of the impact the crime has had on her helpless daughter in the companion case I mentioned earlier, R. v. D.M. (unreported). The harm caused will endure indefinitely. E.C. could not remain in Thunder Bay, knowing how the videos of her abuse were shared with her high school peers.
[46] The shame and embarrassment E.C. suffered forced her to move to southern Ontario. Literally, her family was torn apart because her parents, understandably, through work commitments, were forced to stay on.
[47] Let me be clear. I cannot fathom how these five young men, even caught up in a pack mentality fueled by drug and alcohol consumption with its accompanying diminished inhibitions, could have behaved in such a callous, criminal manner toward E.C. What they did to her was an abomination.
[48] The aggravating factors of D.S.’s offence are numerous:
- a) he actively participated in the assault visited upon E.C;
- b) it resulted in serious psychological and emotional harm to E.C.;
- c) he made no attempt to put a halt to or intervene to prevent the continuing abuse of E.C. over a significant period of time; instead, he revelled in it;
- d) he was aware of the recording of it, which had the potential of capturing all its ugliness for time immemorial; and
- e) he encouraged and goaded on further atrocities being committed upon the person of E.C.
[49] There are nevertheless mitigating factors, as follows:
- a) he pleaded guilty;
- b) he saved the Court and the Crown the expense of undertaking a trial and spared, as well, E.C. the need to testify, albeit late in the day;
- c) D.S. was very young (15) at the time he committed the offence, and his resulting diminished moral blameworthiness must be recognized;
- d) he is a first-time offender and restraint must be exercised in holding him to account;
- e) he has the support and stability of his girlfriend’s family helping him at present to make better life choices, and
- f) he is genuinely remorseful for his actions.
[50] The fundamental principle of sentencing, for youths as well as adults, is proportionality. The sanction I impose upon D.S. must reflect the extreme seriousness of the offence he committed and his degree of responsibility for it. What D.S. and his cohorts did to E.C. on the night of November 26, going into the early morning hours of November 27, 2022, was heinous. No one should be subjected to the indignities done to her. Those who do, and in almost all instances will, be subjected to a custodial sentence.
[51] With respect, I disagree with Crown and defence counsel that a DCSO is not an available sentencing option. Serious bodily harm resulted to E.C., mostly in the form of psychological trauma. I find specifically as well that D.S.’s conduct, both principally and as a party, endangered her safety by creating a substantial likelihood of causing bodily harm. Not only did D.S. egg on and encourage an acquaintance, B.G, to, proverbially, have his way with the incapacitated E.C., he was reckless or willfully blind as to what he would do to her and as to what harm may befall her.
[52] I point out additionally that in R. v. N (H.T.), 2006 BCCA 218, a custodial sentence imposed on a young person, who committed a violent offence as a party, pursuant to section 21 of the Criminal Code, was upheld on appeal.
[53] On another note, I must also emphasize that psychological harm resulting from sexual assault can most assuredly constitute serious bodily harm (see R. v. Nelson, 2014 ONCA 853 at para 353, and R. v. I.A., 2022 ONCJ 490 at para 24). All sexual assaults are serious acts of violence (see R. v. A.J.K., 2022 ONCA 487 at para 47). A young person who commits a violent offence can be committed to custody (see s. 39(1)(a) of the YCJA). The sub-subsections of section 39(1)(a) to (d) are also disjunctive. If any of the four provisions apply, the young person becomes ‘custody eligible’. Under s. 39(1)(d) of the YCJA, this case may also clear the hurdle for an “exceptional case” (see R. v. N.B., [2011] O.J. 1715 at paras 25-29).
[54] Having satisfied myself that D.S. is custody eligible, I must now decide on the form the custody must take. I must, as directed by the YCJA, impose the least restrictive sentence, which holds D.S. accountable, but still promotes his rehabilitation and reintegration into society. The reality is – two whole years have gone by since D.S. participated in a despicable sexual assault upon E.C. What I do today is hardly a “timely intervention” or an act of “promptness and speed”, given D.S.’s “perception of time” as a young person (see s. 3(1)(b)(iv) and (v) of the YCJA).
[55] D.S. was 15 when he committed the offence. He just turned 18 on […] this year. I ask myself – what purposes and principles of sentencing, other than denunciation, and perhaps specific deterrence, are achieved through incarcerating him now? Can these objectives be fulfilled through a lesser but appropriate sanction? Further, I query, what point is there to warehousing D.S. for effectively a period of four to six months, if I accede to the Crown’s submission and jail him, when some greater measure for the protection of the public can be attained through another vehicle? More squarely put, is a DCSO a more appropriate and a less restrictive sanction?
[56] In answer to these questions, I am buoyed in my confidence that it is, by the decision of my colleague, Camara, J. in R. v. T.M., 2024 ONCJ 257. The facts and issues at play in T.M. were set out by Her Honour at paragraphs three to seven, as follows:
“On December 6, 2023, T.M. pled guilty to one count of dangerous driving, causing the death of Jiale Tan. The facts in support of the guilty plea are that, on June 19, 2023, at approximately 1:30 a.m., T.M.’s vehicle collided into the rear end of the vehicle driven by Mr. Tan, as Mr. Tan entered the Lincoln Alexander Parkway. T.M. was driving 232 kilometres per hour. The impact propelled Mr. Tan’s vehicle forward. It rolled several times and caught fire. T.M.’s vehicle rolled onto its roof and sled — and slid approximately 340 metres before coming to rest.
T.M. ran from his vehicle to Mr. Tan’s vehicle and was able to pull Mr. Tan out of his vehicle and away from the fire. Mr. Tan was taken to hospital but sadly he died of his injuries two days later. T.M. was charged with dangerous driving causing death and criminal negligence causing death. On June 19, 2023, T.M. was 16 years of age. He has no prior youth record. He is of both Indigenous and of black Canadian descent. The Crown will be seeking a custodial sentence. The defence would like to seek a deferred custody and supervision order (DCSO) pursuant to section 42(2)(p) of the YCJA. However, section 42(5)(a) of the YCJA makes this sentence unavailable for an offence in which serious bodily harm was attempted or caused and section 42(2)(p) limits duration of such an order to six months.
In contrast, an adult found guilty of dangerous driving causing death would have a conditional sentence available as a sentencing option. These provisions give rise to a scenario in which a youth court justice sentencing a young person for an offence involving actual or attempted serious bodily harm has no sentencing option between custody and probation. T.M. argues that this is a scenario in which a young person is liable to a greater sentence than a similarly situated adult.
The issues I am to determine are:
a. Does section 42(2)(p) and section 42(5)(a) of the YCJA violate section 15 of the Canadian Charter of Rights and Freedoms?
b. Does section 42(2)(p) and section 42(5)(a) of the YCJA violate section 7 of the Canadian Charter of Rights and Freedoms?”
[57] Camara, J., in a very thorough and well-reasoned analysis of the issues, went on to find that sections 42(2)(p) and 42(5)(a) of the YCJA violated the equality and the life, liberty and security rights of young people within the meaning of the YCJA under sections 15 and 7 of the Canadian Charter of Rights and Freedoms respectively. She held that the provisions disentitling youths to a DCSO under the circumstances of the case before her were constitutionally invalid.
[58] I am keenly aware that no notice of constitutional question was served and filed in this case by D.S.’s counsel. Indeed, his lawyer told me he deliberately chose not to bring a Charter application. I make no finding that I am bound by the operation of horizontal stare decisis. Irrespective of whether I should be or not, I am inclined to follow the decision of Camara, J., for reasons grounded in logic and fairness.
[59] To my mind, a community-based sentence available for adults for violent crimes, but not for youths, smacks of fundamental unfairness. In the case before me, a DCSO permits me to employ the appropriate vehicle and provide a proportionate response to hold D.S. accountable for the role he played in the sexual assault upon E.C., and at the same time, to promote his rehabilitation and reintegration into society, which will in turn contribute to the long-term protection of society.
[60] Again, I ask myself, how does the Court as an institution try to prevent this type of atrocity from occurring in the future? How do I best deliver the message to D.S. that what he did is totally unacceptable and criminal, but yet, at the same time, open his eyes and rehabilitate him?
[61] To be blunt, and to make D.S. understand, I will tell him in plain English that what he did to E.C. was evil and wrong. However, he is not an irretrievable criminal. He is a youthful, first-time offender who can, in my estimation, be rehabilitated and reintegrated into society without being sent to jail. For young people like him, incarceration most definitely must be the penal sanction of last resort.
[62] The parity principle must also be respected. The sentence I settle upon for D.S. must be similar to the sentences imposed in this region on similar youths found guilty of the same offence, and committed in similar circumstances.
[63] Crown counsel referred me to the disposition imposed by my colleague Brochu, J. for S.M., the only adult, but just barely so at age 18, who was amongst the five male participants in the sexual assault upon E.C. Her Honour imposed an 18-month jail sentence to be followed by two years probation.
[64] The decision of Brochu, J. can be distinguished on two clear bases:
- a) Firstly, S.M. was an adult when he committed the offence and could not avail himself of the special protection offered to young people under the YCJA. He was also being sentenced for additional offences.
- b) Secondly, S.M.’s delict was very different and far more pernicious. He was the one who published on social media the inhumane treatment E.C. received at the hands of the five male participants, who abused her mercilessly that night. He made her a public exhibit for all her peers to see. That is not D.S.’s case.
[65] Closer on its facts to this one is the role played by G.E., another one of the five males, whose case was decided by another of my colleagues, Burton, J. In her unreported decision, she described what the five young men did in the following passage:
“The aggravating facts in this case are legion. What was going on in that motel room was human behaviour at its worst. I don’t have enough adjectives in my vocabulary to properly describe it. It was disgusting, cruel, degrading, humiliating, and every one of the participants should be ashamed of themselves. It was pack behaviour. It was recorded for posterity while the boys laughed. Mr. E. was there throughout, caught on camera as others assaulted the victim and laughed. He was caught on camera whooping and smiling in the group selfie.”
[66] D.S. was no less an active participant than G.E., perhaps more so. As a fact, Burton, J., following trial, did not find that G.E. sexually assaulted E.C. He did not touch her or come closer than a foot or two away from her. He did not appear to speak to her at any point. He was guilty of participating in a selfie that constituted making child pornography. Accordingly, his act did not meet the test for a violent offence. He was not custody-eligible.
[67] By contrast, D.S. fondled E.C.’s naked breast and touched her unclothed buttocks. His acts in doing so were an inherently violent offence to the person of a defenceless E.C. He played a role in inflicting psychological scars that she may well have to endure her entire life. I can only hope that the passage of time and new surroundings will offer E.C. some solace and comfort.
[68] Nevertheless, in G.E.’s case, Burton, J. saw fit to denounce G.E.’s conduct by imposing a two-year sentence of probation, the first six months of which included a term of house arrest.
[69] My sentence will do likewise.
[70] I must also distinguish D.S. from G.E. Unlike G.E., D.S. is genuine in the remorse he expressed for his conduct toward E.C. D.S. has insight into the wrongfulness of what he did. I firmly believe that D.S. wants to change and can take the high road to avoid further brushes with the criminal justice system.
[71] D.S.’s case is almost on all fours with the companion case, which I recently decided for other young person, D.M. Accordingly, the sentence I impose for D.S. will be nearly identical to the one meted out to D.M.
[72] I have reviewed the handful of authorities provided to me by Crown counsel. Suffice to say, no two cases are completely alike. The Crown’s cases referred to me all involved far more invasive, egregious and degrading acts than what D.S. did, either principally or as a party, to E.C.
[73] Defence counsel also referred me to two cases. The first was a decision of my colleague, O’Marra J., reported at R. v. S.A., 2024 ONCJ 663. The offender there had intercourse with his biological sister on numerous occasions spanning a period of several years. He also suffered from fetal alcohol spectrum disorder and attention deficit hyperactivity disorder.
[74] At paragraph 45, Justice O’Marra referred to a decision of Monahan J in R. v. I.A., 2022 ONCJ 490, wherein he cited with approval the observation made by his Honour at paragraph 52 as follows:
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.
[75] O’Marra J. emphasized however that the case before him was different because it involved a youthful offender with special needs and cognitive difficulties. His Honour saw his way through to imposing a two-year probationary period in what he considered to be “unique and/or exceptional circumstances” (see paragraph 48 of S.A.). His Honour went on to hold at paragraph 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.” (citation deleted)
[76] D.S. does not present before me with “any unique and/or exceptional circumstances” such as S.A.
[77] In the other case referred to me by defence counsel, R. v. J.D., 2021 ONCJ 204, Harris J. imposed a two year period of probation upon a 22 year old offender who had penetrative, nonconsensual sex with his former girlfriend on four occasions while he was a youth.
[78] Crown and defence counsel both took the view that the crime committed was a “violent offence” because of the devastating psychological harm caused to the victim (see para. 71). Both counsel were also of the opinion that a DCSO was not available (see para. 74).
[79] His Honour seemed most concerned that J.D., a young man who had managed to stay out of trouble for 44 months since the discovery of his crimes, would end up serving his time in an adult correctional facility, should he impose any period of custody for him (see paras. 82 and 102).
[80] Under those circumstances, Harris J. handed down a two year period of probation, the first six months of which, J.D. would be subjected to house arrest.
[81] Effectively, to my mind, Harris J. made a probation order which was more akin to a DCSO. It is obvious too, of course, that Harris J. did not have the benefit of TM before him.
[82] I remain persuaded by the reasoning of Camara J. in TM. The appropriate sentencing option in this case is a DCSO. It reflects the seriousness of the offence D.S. committed. It holds him accountable for his criminal conduct. It severely restricts his liberty, but it avoids incarcerating him. It protects the public.
[83] Primarily for these reasons, I shall impose a DCSO of six months duration upon D.S. To do so would be most consistent with the purposes and principles of sentencing set out in section 38 of the YCJA.
[84] The terms of the DCSO will be as follows:
- a) D.S. is to appear before a Youth Court justice when required to do so by the Court.
- b) He is to report in person to a youth worker today, or by phone, and after that at all times and places as directed by the youth worker or anyone designated by the youth worker to assist in his supervision.
- c) He is to cooperate with his youth worker.
- d) He must sign any releases necessary to permit his youth worker to monitor his compliance with, and must provide proof of compliance with, any condition of this DCSO to his youth worker on request.
- e) For the entirety of this DCSO, he will be in his residence daily at all times, subject to the following exceptions: for any medical emergency or hospital visit involving him or a member of his immediate family; he may also travel directly to, from and be at work or educational, vocational, or other programs as approved by the youth worker; and he can be away from his residence for any pre-arranged, good reason as long as he has on his person a copy of his DCSO and the prior, written permission of his youth worker for such absence.
- f) He is not to contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with S.M., B.G., G.E. and D.M., except as necessary in class, at school.
- g) He is not to contact or communicate in any way, directly or indirectly, by any physical or electronic or other means, with E.C.
- h) He is not to be within 100 metres of any place he knows E.C. to live, work, go to school, frequent or any place he knows her to be.
- i) He is not to buy, possess, or consume alcohol or other intoxicating substances.
- j) He is not to possess or consume any unlawful drugs or substances referred to in the Controlled Drugs and Substances Act, except with a valid prescription in his name, or those available to him over the counter.
- k) Most importantly, he is to attend and actively participate in all assessment, counselling or rehabilitative programs, as directed by his youth worker, and complete them to the satisfaction of the youth worker for healthy sexual behaviours, bereavement and mental health, as recommended.
[85] His DCSO will be followed by an 18-month period of probation. That period of probation will also be on the same terms as the DCSO but for the home confinement condition. I considered at length whether I should relieve D.S. from compliance with abstention from alcohol and non-prescription drugs during his term of probation. Ultimately, I decided against it based on his complete and utter lack of judgment exhibited on the night in question while in his intoxicated state. For the next two years, D.S. will be sober.
[86] By way of ancillary orders, I will order the taking today of — or within 30 days of today’s date — a sample of his DNA, to be maintained on the confidential database maintained by the R.C.M.P.
[87] I will also order the forfeiture of the cellular phone taken from him at or about the time of his arrest.
[88] I will decline to make any weapons prohibition order under section 51(1) of the YCJA. Weapons played no role in the assault on E.C.
Released: March 28th, 2025
Signed: Justice M. G. March