ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: YO-12-4

DATE: 20140707

BETWEEN:

HER MAJESTY THE QUEEN

– and –

I.R.

Defendant

Kimberley M. Bertholet, for the Crown

Frank Miller, for the Defendant

HEARD: September 19, December 19, 2013, February 21, 2014 and May 2, 2014

RESTRICTION ON PUBLICATION

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, 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 having been dealt with under this Act. This judgment complies with this restriction so that it can be published.

REASONS FOR SENTENCE

Pomerance J.:

[1] In 2002, the offender, I.R., sexually assaulted the daughter of his common law spouse by defecating on her face. He was then 17 years of age. The victim did not come forward until 2011. The offender pleaded guilty to the offence and is now to be sentenced. What is the proper sentence for the offender, who is now 30 years old? Should the offender be sentenced as a young person or an adult?

[2] This is a challenging case. It is now 12 years since the offence was committed. The offender is an adult; yet he must be sentenced on the basis of an offence committed when he was 17 years of age. There have been changes in the offender’s life, including subsequent criminal convictions.

[3] This case is also challenging because of the nature of the offence, which is simultaneously bizarre and repugnant. There would seem to be no cases dealing with similar types of sexual acts involving young children.

[4] Having considered the evidence on the sentencing hearing, and the submissions of counsel, I find the offender should be sentenced as a youth, rather than as an adult. At the same time, I find that the proper sentence is a term of incarceration, due to the violent nature of the offence.

[5] My reasons will be set out in the paragraphs that follow.

THE FACTS

a. The offence

[6] I.R. was, at the age of 17, living with his girlfriend. She had a young daughter, who was between three and five years of age at the time of the offence. The offender was in a position of parental trust vis-à-vis the daughter, notwithstanding that he was still very much a child himself. Around the time of the offence, the couple had another child, a son. They lived together as a family. Their son, D., later became a crown ward.

[7] I.R. and his girlfriend engaged in experimental sexual behaviour, including sexual acts involving defecation.

[8] On the date of the offence, the offender defecated on the face of the victim, K.H. K.H. came forward to disclose several years later, in 2011. In a statement to police, the offender admitted to defecating on the victim’s face, stating that he did so in order to discipline the child for failing to clean her room.

[9] There is no evidence of victim impact before the court. The victim, through her foster mother, declined to provide victim impact information.

b. The offender

[10] At the time of the offence, I.R. did not have a criminal record. In the 12 years since the offence, he has acquired various criminal convictions for theft, robbery, fail to comply, and one conviction for sexual assault. The last of these was a relatively minor offence. It did not involve a child victim.

[11] It would appear that the offender had a difficult childhood, though he was less than forthcoming about this when speaking to his probation officer. The author of the pre-sentence report stated: “Although he does not fully admit to it, it appears as though Mr. R. had a difficult family upbringing, where he was subjected to family violence and abnormal situations in the home”.

[12] The offender admitted to the author of the pre-sentence report that he uses illicit substances. At the time of the offence, he and the victim’s mother were using crack cocaine. He attributed many of his criminal behaviours to his consumption of crack cocaine and claimed that he was under the influence of the drug when he committed the offence before the court. I.R. reported that he has not consumed crack cocaine in the last three years.

[13] The offender reported that he has used marijuana regularly since the age of 12. He also reported issues with alcohol. He has never successfully completed a long term substance abuse treatment program. He also struggles with anger management issues.

[14] The offender is currently in a relationship with a woman, with whom he has a young son and daughter. The Children’s Aid Society (CAS) is involved with the family, as a result of the offender’s arrest on the historical offence. According to the pre-sentence report, the CAS is concerned about child safety “based mainly on the subject’s previous behaviour and substance abuse history”.

[15] Pursuant to s. 34 of the Youth Criminal Justice Act, S.C. 2002, c.1, (YCJA), I ordered that the offender be subject to an assessment. The assessment was prepared by Dr. Duncan Scott on December 9, 2013. Dr. Scott’s comments included the following:

In summary, there is no evidence of any major mental illness. He isn’t on any medication. He is employed and the C.A.S. are involved with his children. They see him once a week. He sees the offence as childish and he felt it was directly related to him being high on cocaine.

This individual has had significant difficulty related to cocaine abuse resulting in bizarre sexual acts in a tragic situation with a young child. From a psychiatric point of view, his current difficulties are related to anger and treatment should revolve around getting help for this. He has demonstrated that he is able to continue to be abstinent from his prior drugs of choice. I do have concerns with him being on any psychoactive substance, particularly alcohol. He has a substance dependence difficulty with marijuana and alcohol, and although he states that marijuana helps him “chill and sleep” it is still illegal. I feel that his use of crack cocaine is in remission. Alcohol abuse must be treated and he must remain abstinent as I feel if he continues to drink even one night a week, he has a higher probability of getting into another domestic assault.

This individual requires help with the precipitants of anger. He has had difficulties with using cocaine, alcohol and marijuana. Alcohol and cocaine certainly aggravate his chronic anger/impulse control problems and he requires counselling and perhaps psychopharmacological intervention.

THE ISSUES

[16] In determining a fit sentence, I must answer two questions:

a. Should the offender be sentenced as a youth or an adult? And,

b. Based on the answer to question #1, what is a fit and appropriate sentence?

ANALYSIS

Should the offender be sentenced as a youth or an adult?

[17] These proceedings were initiated prior to the October 23, 2012 amendments to the YCJA. The parties agree that the case is governed by s. 72 of the YCJA as it read prior to the 2012 amendment. At that time, the section read as follows:

72. (1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.

Pre-sentence reports

(3) In making its decision, the youth justice court shall consider a pre-sentence report.

Court to state reasons

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

Appeals

(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.

[18] Counsel also agree that the maximum sentence available to the court under the YCJA is two years, notwithstanding that, by virtue of the 2012 amendments, a sentence of three years is now available.

[19] Pursuant to s. 72 of the YCJA, as it provided at the relevant time, I must consider the following factors in assessing whether a youth sentence has sufficient length to hold the offender accountable for his offending behaviour:

a. The seriousness and circumstances of the offence;

b. The age, maturity, character, background and previous record of the young person; and

c. Any other relevant factors.

[20] While the onus is on the Crown to establish that an adult sentence is appropriate, the Crown is not held to the traditional criminal standard of proof beyond a reasonable doubt. As the Ontario Court of Appeal held in R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561 at para. 34:

Section 72(1)(b) requires the youth court to weigh and balance the enumerated factors and then decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour. That type of evaluative decision – making an informed judgement – does not lend itself to proof beyond a reasonable doubt. As McLauchlin explained in R. v. M(S.H.) supra, the court is not being asked to make findings of fact about past events nor to make a determination of whether a crime has been committed, which are the types of decisions for which beyond a reasonable doubt is normally required.

[21] Accountability is the central concept in the sentencing of young persons. The purpose of youth sentencing is “to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long term protection of the public” (s. 38(1) of the YCJA).

[22] In choosing between a youth or adult sentence, the question is whether a youth sentence would be long enough to have meaningful consequences for the young person, promote his rehabilitation and reintegration into society, and contribute to the protection of the public. A sentence will hold a young person accountable if it achieves two objectives. It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society.

[23] The presumption of diminished moral blameworthiness for young persons is a legal principle that is fundamental to the operation of a fair legal system (R. v. D.B, 2008 SCC 25, [2008] 2 S.C.R. 3, para. 61). The YCJA is premised on the recognition that to be a youth is to be in a state of diminished responsibility in a moral and intellectual sense. Adolescents may lack a fully developed sense of judgment and may lack the intellectual capacity to fully appreciate the consequences of their acts.

[24] Mr. Miller, counsel for I.R., argues that the offender should be sentenced as a young person. He argues that rehabilitation has largely been achieved in the years following the offence. While I.R. has committed other criminal offences, he has not engaged in any similar conduct, and has not re-offended against children. While the defence acknowledges the gravity of the offence, it is said that the presumption of diminished moral blameworthiness has not been rebutted by the Crown. It is said, in any event, that a sentence of up to two years is long enough to achieve the goal of accountability.

[25] The Crown argues that the offence is sufficiently serious to require an adult sentence. It is further said that the offender was 17, and standing in a position of in loco parentis at the time the crime was committed. This, it is said, reflects a level of maturity and responsibility that warrants treating the offender as an adult. The Crown argues that a sentence of two to three years in the penitentiary is appropriate in this case, thereby requiring an adult sentence.

[26] The application of s. 72 of the YCJA, in the circumstances of this case, is far from clear. However, on balance, I find that a youth sentence is long enough to hold the offender accountable for his actions.

[27] The YCJA permits a sentence of up to two years to be imposed. The offence, while serious, does not call for a sentence that exceeds a period of two years. A sentence within that range can hold I.R. accountable for his actions, in the sense of reflecting the blameworthiness of the offence, and the person that he was when he committed it. At the time of the offence, I.R. had assumed the responsibilities of an adult, in that he was parenting young children. However, it does not automatically follow that he possessed a degree of maturity commensurate with these responsibilities. There is evidence to indicate that the offender was under the influence of intoxicating substances at the time of the offence. This, together with his age, supports the presumption of diminished moral blameworthiness. This is not to say that his actions were not blameworthy. They clearly were. It is only to say that the level of blameworthiness can be adequately addressed by a sentence that corresponds to his age at the time of the commission of the offence.

[28] The offender was a first offender at the time of the offence. The subsequent criminal convictions are relevant to the assessment of rehabilitation. However, the court must be cautious not to punish the offender for events that took place after the offence in issue. The sentence imposed must, to the extent possible, be based on the offence and the characteristics of the offender at the time he committed it. Broadly speaking, character is always relevant to determination of sentence. The offender’s conduct since the offence is relevant to his character. However, an offender should not receive a longer sentence merely because the offence did not come to light for many years. The offender currently stands before the court as an adult. He will serve his sentence in an adult facility. However, he committed the offence while he was still a young person. Intervening events, while relevant, must be approached with caution.

[29] This is a close case. In all the circumstances, however, I find that the Crown has failed to prove that a sentence of up to two years would be inadequate to hold the offender accountable for his actions.

What should a proper youth sentence be?

[30] Several principles govern sentencing under the YCJA. These principles differ from those in the Criminal Code, R.S.C. 1985, c. C-46. The concepts of denunciation and deterrence, traditionally applied in adult sentencing, are excluded from the sentencing objectives of the YCJA (see s. 50). The focus of the YCJA is on the best interests of the young person. Accountability under the YCJA must remain “offender-centric”. Young persons are “accountable in accordance with their personal circumstances and the seriousness of the offence” (D.B. at para. 94; R. v. A.A.Z., 2013 MBCA 33, 291 Man. R. (2d) 152 at para. 65). The emphasis is on rehabilitation and reintegration, rather than general deterrence.

[31] Section 38 of the YCJA provides as follows:

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) 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 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) 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;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her 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; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[32] Section 39(1) provides that a young person can only be committed to custody in certain circumstances:

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 failed to comply with non-custodial sentences;

(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.

Alternatives to custody

(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

Factors to be considered

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

Imposition of same sentence

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

Custody as social measure prohibited

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

Pre-sentence report

(6) Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel.

Report dispensed with

(7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary.

Length of custody

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.

Reasons

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d).

[33] Pursuant to s. 89(1) of the YCJA, were I.R. to be sentenced to custody, he would serve his sentence in a provincial correctional facility for adults.

[34] It is the Crown’s position that a custodial term should be imposed in this case. I must, therefore, consider whether the conditions in s. 39(1) apply. Is the offence before the court a violent offence? Is this an exceptional case where the aggravating factors warrant a custodial sentence?

[35] The term “violent offence” is one that causes “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant” (R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668). The courts have accepted that serious bodily harm includes serious psychological harm (R.v.McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72).

[36] It is argued, on behalf of I.R., that there is no evidence of physical or psychological harm in this case. On this basis, it is said that the crime is not a violent offence for sentencing purposes. Mr. Miller points out that there is no evidence of victim impact in this case. The foster mother of the victim indicated that the victim would not be submitting any material to the court. The Crown suggested that the foster mother was concerned that participation in the proceedings might cause trauma to the victim. There is, however, no evidence to that effect before the court.

[37] Today, the day that sentence was to be imposed, the Crown introduced a statement from the victim’s biological mother. It speaks of how the offence affected her as a parent. The document on its face, speculates that the victim “may never have a healthy sexual relationship as an adult”. During the hearing, the victim’s mother clarified that it was she herself that might have trouble with sexual relationships. She was concerned about how that might affect the victim. Her statement does not represent actual victim impact, but rather, her fear of potential impact. That fear is understandable. However, I do not attach any weight to that statement for purposes of sentencing the offender.

[38] I do not have any direct evidence of actual trauma or harm. The record is silent as it relates to the impact of the offence on the victim.

[39] The absence of evidence of harm does not mean that there is evidence of no harm. To the contrary, the nature of the offence is such that an inference of harm should be drawn. This flows from the sexual nature of the offence, the fact that the victim was a very young child, and the degrading, disgusting nature of the act performed by the offender. It is impossible to conceive that the act of defecating on a child’s face could ever be harmless. The prospect of harm should not be discounted merely because it is not expressly described in the evidence.

[40] In R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, the Alberta Court of Appeal, spoke about the harm inherently associated with sexual offences. After quoting from the decision of Cory J. in R. v. McCraw, the court stated in para. 176:

When an offender commits a major sexual assault, including rape, against a person, this act of violence causes harm. It is harm to both the victim and society. A major sexual assault constitutes a serious violation of a person’s body and an equally serious violation of their sexual autonomy and freedom of choice. These breaches of one’s physical integrity and privacy are indisputable and undeniable. That harm, and it is substantial, is inferred from the very nature of the assault. Add to this the serious breach of a person’s human dignity and the gravity of a major sexual assault perpetrated on a victim becomes readily apparent.

[41] In R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), the Ontario Court of Appeal stated in para. 36 that: “The horrific consequences of child sexual abuse are only too well known”. The court approved of the following observations of

the Alberta Court of Appeal in an earlier case:

When a man has assaulted a child for his sexual gratification, then, even if no long lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises of broken bones and may even be permanent.

[42] In R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103 (C.A.), the court similarly observed in para 44 that:

Sexual abuse is an act of violence. When committed against children the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless.

[43] The offence in this case must be deemed a major sexual assault against a defenceless child. It involves an almost unthinkable breach of the physical integrity and human dignity of the victim. The nature of the act is profoundly degrading and humiliating. The degree of inferred harm is exacerbated by the fact that the offender stood in the place of the victim’s parent. The gross violation of trust by a person who was supposed to care for and protect the victim is an additional factor contributing to the likelihood of psychological harm.

[44] While it falls to the Crown to prove the existence of aggravating factors beyond a reasonable doubt, I am satisfied that proof of a violent offence has been made out. The Crown does not need to lead evidence to prove what would otherwise flow as an obvious inference. Had the offender engaged in vaginal intercourse with the victim, an inference of harm would be inescapable. The result should be no different just because the sexual act in this case is of a more bizarre and degrading character. Certainly, there is no reason to believe that the offence did not result in the harm traditionally associated with child sexual offences.

[45] For these reasons, I conclude that the offence in this case constitutes a “violent offence” for purposes of the YCJA. Accordingly, a custodial sentence is appropriately imposed in this case.

[46] I am mindful of the fact that this sentence is being imposed many years after the offence. I am mindful of the fact that the offender has changed as a person since that time. He has not repeated this behaviour, and has not reoffended against children. I have considered the offender’s plea of guilt as evidence of remorse. The effect of his plea was to spare the victim the difficult task of reliving the events through her courtroom testimony.

[47] I am mindful of the fact that principles of general deterrence and denunciation are not applicable under the YCJA. I am mindful of the fact that incarceration should be seen as a tool of last resort when sentencing young persons.

[48] Notwithstanding all of these factors, the goal of accountability, as defined in the YCJA, can only be achieved if a term of incarceration is imposed.

[49] I sentence the offender to twelve (12) months in custody. The offender shall serve eight (8) months in custody, followed by four (4) months under supervision in the community. This will be followed by 12 months probation.

[50] In addition to the statutory terms and conditions:

a. Report as required

b. Attend counselling as required, including counselling for substance abuse and/or anger management issues.

c. Refrain from associating, directly or indirectly, with K.H.

[51] Pursuant to s. 51 of the YCJA, a weapons prohibition will be in place for two (2) years.

[52] A DNA sample will be taken for purposes of the DNA data bank.

Original signed by “Renee M. Pomerance”

Renee M. Pomerance
Justice

Released: July 7, 2014

COURT FILE NO.: YO-12-4
DATE: 20140707

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

I.R.

REASONS FOR sentence

Pomerance J.

Released: July 7, 2014