COURT FILE NO.: YC/13/300000/4
DATE: 20140722
ONTARIO
SUPERIOR COURT OF JUSTICE
YOUTH CRIMINAL JUSTICE COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Susan H. Lee, for the Applicant
Applicant
- and -
C.S.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Douglas Holt, for the Respondent
Respondent
HEARD: June 25, 2014
Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of C.S. or any other information that would identify C.S.
KELLY J.:
reasons for sentence
[1] The Respondent, C.S., pleaded guilty to sexual assault with a weapon, two counts of robbery, two counts of wearing a disguise with intent, assault with a weapon and breach of recognizance. The offences relate to two separate occurrences that happened within minutes of each other on October 15, 2012. C.S. now comes before me for sentencing.
[2] At the time of the offences, C.S. was two weeks shy of his 17th birthday.[^1] As such, he is a “young person” as defined in the Youth Criminal Justice Act (the “YCJA”).[^2] He has been in custody since his arrest: approximately 21.5 months (645 days). He is now 18 years of age; three months shy of his 19th birthday.
[3] Crown counsel has applied to have C.S. sentenced as an adult pursuant to s. 64 of the YCJA. She argues that a youth sentence would not be sufficient to hold C.S. properly accountable for his crimes. She seeks a sentence of 6 to 8 years in custody less time served at an enhanced rate of 1.5 days for each day spent in pre-sentence custody.[^3]
[4] Although counsel for C.S. agrees that a further period of custody is warranted, he submits that a youth sentence imposed in accordance with the purposes and principles set out in ss. 3(1)(b)(ii) and 38 of the YCJA would be of sufficient length to hold him accountable for his wrongdoing. He submits that a sentence of 2 years together with one year of supervision in the community is appropriate. In this scenario, he submits that no credit for pre-sentence custody should be given to C.S.
[5] If sentenced as an adult, counsel for C.S. submits that a sentence of 3 to 4 years less time served on an enhanced basis is appropriate. Both counsel agree on the ancillary orders.
[6] I am satisfied that the maximum youth sentence, even in addition to the substantial pre-sentence custody, would not be sufficient to hold C.S. accountable for his offending behaviour. I find that C.S. is properly sentenced as an adult and that the appropriate sentence is: 6 years less time served of 32 months (approximately 645 days x 1.5 days). This sentence will require C.S. to spend another 40 months in custody.
[7] What follows are my reasons.
A. The s. 64 Application
Legal Overview
[8] Section 72(1) of the YCJA directs the court, in deciding whether to impose an adult sentence, to consider three factors:
(i) the seriousness and circumstances of the offence;
(ii) the age, maturity, character, background and previous record of the young person; and
(iii) any other factors that the court considers relevant.
[9] Bearing these factors in mind, I must then consider whether a youth sentence, imposed in accordance with the purpose and principles of the YCJA, “would not be of sufficient length to hold the young person accountable for his or her offending behaviour”.[^4] If I am of the view that a youth sentence would not have that affect, then an adult sentence is to be imposed. The burden on the Crown is that of “satisfying the court, nothing more”.[^5]
[10] I must also consider that young persons, such as C.S., by virtue of their age, are presumed to be less morally blameworthy and culpable than an adult. This is so because of their heightened vulnerability, lessened maturity and reduced capacity for moral judgment.[^6]
[11] I now turn to the consideration of whether a youth sentence would adequately hold C.S. accountable for his behaviour in accordance with the factors set out in s. 72(1).
(i) The Seriousness and Circumstances of the Offences
[12] The facts giving rise to the first occurrence and the convictions for sexual assault with a weapon, robbery and wear disguise with intent may be summarized as follows:
a. On Monday, October 15th, 2012, sometime between 6:30 p.m. and 7:00 p.m., Ms. C.F.L. (40) and her seven year-old son went to the playground area at the Timberbank Jr. Public School, located at 170 Timberbank Blvd., in the City of Toronto. Ms. C.F.L.’s son played on the slide as she watched him from the doorway of the school building as it was raining lightly. She was a short distance away: approximately 30 meters from where her son was playing.
b. Approximately 5 minutes later, Ms. C.F.L. heard her son yell out, “Mom, run away fast, somebody wants to kill you!” She had her head down at the time as she was sending a text message. When Ms. C.F.L. looked up, she saw a tall person who was later identified as C.S., wearing dark clothing and a black scarf covering most of his face. All she could see were his eyes. He was holding a long knife as he approached her. C.S. grabbed Ms. Li’s shoulder and pointed the knife at her in a stabbing motion. He demanded that she give him her bag and cell phone. Ms. C.F.L. was scared and she gave C.S. her bag and cell phone. C.S. noticed that there was no wallet in the bag so he told Ms. C.F.L. to open her jacket and he proceeded to grope the pockets of her jacket and her pants.
c. Ms. C.F.L. told C.S. that she had no money and hoped that he would just leave but instead, C.S. demanded that she take her pants off. Initially, Ms. C.F.L. thought that C.S. wanted her new jeans but quickly realized that it was not the jeans that he was after. When she hesitated C.S. threatened her by saying, “Did you see my knife?” At the time Ms. C.F.L. was scared for herself and her son who was hiding behind the slide. She did not want her son to see what was about to happen so she waved to her son to leave but he was still hiding and looking over at her. C.S. forced Ms. C.F.L. to kneel down on the ground, using his hands on her head. She was told to face the wall so that she had her back to C.S. He then proceeded to use his hands to guide his exposed penis to her anus and then used his finger to penetrate her anus 2 to 3 times. Ms. C.F.L. cried out that it was painful. C.S. then demanded that she open her mouth and when she refused he threaten her again by saying, “Did you see my knife?” Concerned about her son, she looked over to the slide to see if he had run away but he was still there. C.S. forced Ms. C.F.L. to perform fellatio for 3 to 5 minutes. He suddenly stopped when he heard other pedestrians approaching the school yard. C.S. pulled up his pants and grabbed his knife, Ms. C.F.L.’s bag and cell phone and ran to the an area between the sports grounds of the school and the park, stopping in front of some trees.
d. Ms. C.F.L. quickly pulled up her pants and grabbed her son and ran from the area. As she ran away, her son told her that the man was still standing there and when she looked he was watching them run away. Once Ms. C.F.L. and her son were home, she spoke to her husband and called the police. C.S. was arrested a short time after the incident and his underwear was seized for DNA testing. As well, his hands were swabbed after the arrest. Ms. C.F.L.’s DNA was found on C.S.’s underwear in the lower crotch area in the front and her DNA was also found on his hand swabs.
[13] The offences with respect to the robbery; assault with a weapon; wear disguise with intent that occurred within minutes of the abovementioned incident may be summarized as follows:
a. Shortly after he had robbed and sexually assaulted Ms. C.F.L., C.S. approached two ladies ‑ Ms. Kwai Fun Chan (age 55) and Ms. Woon Tin Chan (age 59) ‑ walking along a ravine path near the Timberbank Jr. Public School. The Chan sisters had stopped and moved to the side of the path to give way to C.S. as it was their belief that they were too slow and were blocking his way. To their surprise, C.S. did not pass. Instead, he walked up to them while holding a knife and said, “Give me your purse!” As soon as she saw the knife and the demand made, Ms. Kwai Fun Chan knew that this was a robbery so she turned around and ran. Ms. Woon Ting Chan saw only the nose of C.S. as his face was covered up. There was a brief struggle for the purse which caused Ms. Woon Tin Chan to fall to the ground. C.S. took the purse from Ms. Woon Tin Chan and ran.
b. Ms. Kwai Fun Chan ran some distance to a plaza south of Bridletowne Circle on Warden Ave. and entered a restaurant where she was able to call police. Within minutes of the 911 calls from Ms. C.F.L. and Ms. Chan, police were dispatched to the area of Birchmount Road and Huntingwood Drive. Investigating officers arrived on the scene and after a brief investigation, located C.S. at a nearby secondary school, Stephen Leacock Collegiate, just south of Huntingwood Drive and west of Birchmount Road. As soon as C.S. saw the police, he ran and tried to hide. He was apprehended after a short footchase. A large kitchen knife and a folding buck style knife were found in the exact spot where C.S. tried to hide and a number of items belonging to Ms. C.F.L. and Ms. Woon Ting Chan were found on C.S.
[14] The facts with respect to breach of recognizance may be summarized as follows:
a. On or about May 8, 2012, C.S. was arrested and charged with robbery. The matter was dealt with by the courts on August 30, 2012 and C.S. entered into a recognizance with conditions to keep the peace and be of good behaviour and also not to possess any weapons as defined by the Criminal Code.
b. On Monday, October 15, 2012, C.S. was arrested and charged with the offences before this court including two counts breach of recognizance.
[15] In essence, C.S. robbed his first victim. When he did not get what he wanted, he savagely sexually assaulted her, wielding a knife with his face masked in the presence of the victim’s seven year-old son. The knife was employed to threaten, intimidate and control the actions of the victim so that she complied with the commands of C.S. The violence was nothing but gratuitous. He did not stop there and terrorized two more innocent victims thereafter. All three victims were strangers in a public place where they should have felt safe. Notwithstanding his prior encounters with the law, and notwithstanding that conditions were placed upon him subsequent to his release into the community, C.S. chose to ignore those conditions – with tragic consequences.
[16] Needless to say, these facts demonstrate the seriousness of the circumstances pursuant to s. 72(1) of the YCJA. This argues strongly in favour of an adult sentence.
(ii) Background: The age, maturity, character, background and previous record of the young person
[17] I now turn to the background and related information respecting C.S. as I am required to do also, pursuant to s. 72(1) of the YCJA. I have both a pre-sentence report and a psychological assessment regarding C.S. They both provide some information regarding the upbringing of C.S. Generally speaking, C.S. appears to have been raised in a supportive environment and there is some hope that he may be a contributing member of our society.
[18] C. S. was just three weeks shy of his 17th. birthday when these offences occurred. He is now almost 18 years-old. He has been in custody since he was arrested on these offences in October 2012.
[19] C.S. was born in Uganda, Africa in 1995. His father moved to Canada in 2002 and the rest of the family joined him in 2007. His father is a plumber and his mother is a recent York University graduate. He has a sister who is 23 and studying to be a nurse. He has two brothers who are 14 and 5 years of age respectively.
[20] C.S.’s father has established a business back in Uganda and is now commuting between the two countries. His parents are separated. According to C.S., the family relationship is a strong one and he receives significant support from it. In fact, during all court appearances, one family member was present (usually C.S.’s mother or sister). He was residing with his mother and siblings at the time of these offences.
[21] The family appears to be financially sound and no hardships were identified by the Probation Officer who authored the pre-sentence report. Life in Uganda before moving to Canada was good. That continued in Canada when the family settled in North York. C.S’s mother described C.S. as a cooperative youth who adjusted quickly to life in Canada, acquiring friends and following the rules of the home.
[22] C.S. appears to have formed a positive relationship with an 18 year -old girl. He says that he has been her boyfriend for three years. She is currently in university and he describes their relationship as “semi-serious”.
[23] C.S.’s grade school education appears to have been normal. His overall attendance was good and he maintained a “B” average. In grade 9, this pattern continued, but there is an apparent change in grade 10. C.S. did not attend school on a regular basis, nor did he put any effort into completing and submitting his assignments. This resulted in some disciplinary action being taken and C.S. failed a number of courses. That being said, it appears that he met with success in night and summer school programs. This success has continued since his arrest.
[24] While at the Brookside and Roy McMurtry Youth Centres, C.S. completed high school. He has acknowledged that the structure of the facility has contributed to this academic success. His guidance counselor at the Roy McMurtry Youth Centre has described C.S. as a bright and articulate student despite his motivational problems.
[25] C.S. has expressed interest in attending university. He would like to enrol in a marketing or law program. He would eventually like to attend law school. His schools of interest include: Ryerson, York University or The University of Toronto.
[26] The assessment report addressed his academic history and concluded that C.S. “demonstrates Average to High Average cognitive abilities with a notable weakness in vocabulary and some aspects of working memory. Nonetheless, his academic achievement was strong across most domains of academic functioning (reading and writing), with some weakness in math. Given his cognitive and academic scores, it is strongly recommended that Calvin be encouraged and supported in post-secondary education”.
[27] Although C.S. has never been employed, he acquired some skills while in custody. He has expressed interest in working in the landscaping/snow removal business. He has recently acquired his “skid licence”. He has also volunteered while in custody, helping out at the gym and doing some landscape type work.
[28] While in custody as well, C.S. has received a number of certificates of positive behaviour which speak glowingly of his commitment to education and his respect for staff and other students. He has also received a number of certificates of recognition for “employment readiness” developed by Operation Springboard.
[29] C.S. has been involved in the criminal justice system in the past. He was arrested and charged with robbery on May 7, 2012: he stole a phone from a fellow student. It was resolved by way of a recognizance with conditions that he keep the peace and be of good behaviour. Another condition was that he not possess any weapons as defined by the Criminal Code.
[30] Despite the terms of the recognizance, C.S. was arrested and charged with these most serious offences on October 15, 2012. This was less than six months following the disposition of his previous charges.
[31] I am advised that while in detention, C.S. has been involved in a few incidents with his peers resulting in “serious occurrence reports”. He was not described as the aggressor in these reports but had to defend himself from being attacked. During the assessment, C.S. advised that he had been moved from one custodial centre to another because of some altercations. Most recently, he was charged with a number of Criminal Code offences arising from an incident in which employees at the Roy McMurtry Youth Centre were allegedly assaulted. Although the incident is captured on video, it is unclear at this point as to what role, if any, C.S. played in the incident as a number of young persons were charged criminally.
[32] A psychological assessment of C.S. was done by the Centre for Addiction and Mental Health (“CAMH”) under section 34 of the YCJA. The resulting report was mixed in its assessment of C.S. authored Dr. Joe Beitchman[^7] and dated March 18, 2014.
[33] During the assessment, C.S. was subjected to a number of Psychological Parent and Self-Report Questionnaires. Some of the findings are described as follows:
| Questionnaire | Definition | Result |
|---|---|---|
| Paulhus Deception Scales | A 40-item questionnaire that measures one’s tendency to give socially desirable responses on self-report instruments. The PDS contains two subscales: Self-Deceptive Enhancement (the tendency to give honest but inflated self-descriptions) and Impression Management (the tendency to give inflated self-descriptions to an audience). | The analysis resulted in an overall score on the PDS in the “clinical range of responding”. This profile suggests that C.S. “may have a trait like style toward self-enhancement or rigid overconfidence in his functioning”. Accordingly, it is recommended that caution be used in interpreting the self-reports provided by C.S. on his behaviour. “His reports may be an accurate representation of his thoughts on his functioning but not an accurate representation of his functioning from other’s perception”. |
| The Aggression Questionnaire | This is a self-report measure of anger, hostility and aggression. | The results from this questionnaire suggest that C.S. “does not endorse experiencing anger or aggression at higher rates than other youth his age”. |
| The Youth Self Report | An assessment of emotional and behavioural functioning in the youth. | The results from this test indicate that C.S. “does not report experiencing more emotional and behavioural problems than other young males his age”. |
| The Alcohol Use Disorders Identification Test and the Drug Abuse Screening Test – Adolescents. | These are questionnaires concerning the use of alcohol and drugs. | It was concluded that the responses provided by C.S. suggest that there is concern about his alcohol and drug use. |
| The Pride in Delinquency Scale | A measure of how proud or ashamed a youth would feel about committing certain anti-social acts. | C.S. scored in the high average range, indicating slightly higher levels of delinquent beliefs and attitudes compared to other youth seen at the clinic. |
| The Corrections Victoria Treatment Readiness Questionnaire | Assesses the readiness to participate in and engage with a cognitive skills training program. | The results from this questionnaire suggest that C.S. may be open to the idea of making changes in his life and engaging in treatment programming to help himself. |
[34] In the end, the diagnosis provided by Dr. Beitchman is that C.S. suffers from “Substance Use Disorder” (alcohol and possibly marijuana) and “conduct disorder” (adolescent onset).
(iii) Other factors considered relevant
[35] Dr. Beitchman conducted a risk and needs assessment regarding C.S. His conclusions are as follows:
| Test | Definition | Result |
|---|---|---|
| The Youth Level of Service/Case Management Inventory (YSL/CMI) | An empirically validated criminogenic risk/needs measure that provides an estimate of the youth’s likelihood for general reoffending. It can predict general recidivism and there is preliminary evidence that it is a valid predictor of violent behaviour among juvenile offenders. Since the risk in youth can change, they should be reassessed whenever areas of criminogenic risk/needs have been altered. | C.S. scored 20 out of 42 on this measure. Accordingly, he is deemed to be at “moderate risk” for general reoffending. The areas identified as criminogenic risk/needs for C.S. included: inadequate supervision, difficulty controlling behaviour, low achievement, truancy, some delinquent friends, chronic drug and alcohol use, limited organized activities, physically aggressive, inadequate guilt feelings, little concern for others. |
| The Estimate of Risk of Adolescent Sexual Offence Recidivism, Version 2.0 | This is a structured checklist of risk factors that is based on the available research and clinical expertise, which assists clinical judgment in making an estimation of a youth’s risk for reoffending. | At the present time, C.S. presents a “moderate risk” for reoffending sexually within the next 12 months. This conclusion was based on the presence and combination of a number of indicators including both static factors (historical and not changeable) and dynamic factors (recent and potentially changeable). The static factors are the facts giving rise to these convictions. With respect to the dynamic risk factors, there is concern that C.S. retains a deviant attitude toward sexual behaviour due to the use of threats and force used in the incident before the court. C.S. denies attitudes supportive of sexual offending in the future or that he is unwilling to alter his sexual interests or attitudes. |
| The Youth Self Report | An assessment of emotional and behavioural functioning in the youth. | The results from this test indicate that C.S. “does not report experiencing more emotional and behavioural problems than other young males his age”. |
[36] Dr. Beitchman expressed the following concerns with respect to C.S.’s sexual risk to reoffend:
While overtly denying an antisocial interpersonal orientation, he was unable to acknowledge the extent of his sexual assault, minimizing and denying elements of the assault that he had agreed to in the statement of facts. This raises concerns that he has not yet developed a realistic plan or approach to contain and prevent further problems with his sexual and antisocial impulses.
[37] While he is unable to explain his behaviour on October 15, 2012, C.S. states that he was high on marijuana and alcohol. However, during the assessment, he seemed “guarded” about the amount of marijuana and alcohol consumed on October 15, 2012 before the offences occurred.
[38] The victim of the sexual assault provided a victim impact statement. The assault has caused irreparable harm. She was planning to have another child with her husband, but she had no interest in being intimate with him. She is now divorced and has expressed discomfort in the company of young black men. This has had the same impact on her son who witnessed the assault. Although she has not discussed the incident with her son, he has told her that they have to run away when in the presence of a black man, especially one who is wearing a hat.
[39] When asked about how the victim felt at the time she was assaulted sexually, C.S. said that she “may” have felt disrespected. He was unable to explain what he meant. When Dr. Beitchman suggested the victim might have felt “anxious” or “terrified”, C.S. acknowledged that she “may” have felt that way. C.S. did, however, express remorse for his actions and said that he was not proud of what he had done. If he could, he would say “sorry” to the victim because he knows that she was scared and terrorized.
[40] The other two victims declined to provide victim impact statements. They advised Crown counsel that they had forgiven C.S.
Would a youth sentence hold C.S. accountable?
[41] Having considered the relevant circumstances of this case, I now turn to the central and difficult question to determine whether or not a youth sentence would be of sufficient length to hold C.S. accountable for his offending behaviour. As a matter of principle, “the criminal justice system for young persons must be separate from that of adults” and must emphasize the “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”.[^8]
[42] Section 38(1) of the YCJA states that the purpose of sentencing under the YCJA is 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.
[43] Section 38(2) of the YCJA sets out the principles that are to be considered which include:
(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.
[44] There follows a list of principles to be taken into account, including that any sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for the offence. Finally, s. 38(3) sets out a list of factors to be taken into consideration in determining an appropriate sentence under the YCJA. Those factors are:
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.
[45] However, before an adult sentence may be imposed upon a young offender, Crown counsel must satisfy the court that a youth sentence, after he or she is given credit for any pre-sentence custody, would not be long enough:
a. To properly hold the accused accountable for his or her crimes, having regard to the seriousness of the offences, the offender’s moral culpability in their commission, their consequential harm to any victims; and
b. To provide some reasonable assurance of the offender’s rehabilitation and safe reintegration into society.[^9]
[46] I am satisfied that Crown counsel has met the onus of establishing that only an adult sentence would properly hold C.S. accountable for his conduct on October 15, 2012. I am also satisfied that Crown counsel has rebutted the legal presumption that C.S., by virtue of his age at the time of the offences, is less morally blameworthy and culpable than an adult as a result of his heightened vulnerability, lessened maturity and reduced capacity for moral judgment.
[47] By way of summary, the assessment, while positive about the progress C.S. has made in custody, raises some concerns. I share the concern raised by Dr. Beitchman set out previously. C.S., in the agreed statement of facts, admitted that he had penetrated the victim anally. During the assessment, he denied that he did so. He also stated that he had “allegedly” threatened the victim when asked about the weapon he possessed. The facts, as agreed during this proceeding, are that a serious threat was made on at least two occasions using a knife to assist in executing the assaults. The minimization and denial of these significant aggravating facts post plea raises concerns. Has C.S. fully grasped the severity of these offences? Is he fully aware of the seriousness of his conduct and the impact on his victims? The minimization of his role in these offences may impede his rehabilitation prospects.
[48] There are other concerns that were raised in the assessment, some of which may be summarized as follows:
a. C.S. appears to have little empathy for others. His attitude shown during the assessment process has been described as callous.
b. C.S. does not believe that he requires counseling as “he feels he has had sufficient sessions”. A comment such as this heightens the court’s concern that C.S. has little insight into his issues and that rehabilitation may be questionable, although C.S. says he is willing to participate in programs. Without a court order, I am not satisfied that C.S. would pursue the necessary treatment and programs on his release.
c. C.S. appears to blame “free time” on the offences. He said that he feels that he would not have time to get into trouble again because of his future educational plans. When Dr. Beitchman advised C.S. that he was concerned that C.S. was unable to offer a sufficient reassurance that this type of behaviour would not happen again, C.S. said that he was certain that he would not engage in such behaviour because he has “better things” to think about. This, in my view, is somewhat superficial.
d. There is a juxtaposition between the two interviews conducted by Dr. Beitchman during the assessment. On the first occasion, C.S. presented well and he was forthcoming. On the second occasion, Dr. Beitchman described that his presentation “was more concerning” than it had been on the first occasion. When C.S. was told that a further interview was required to get a better understanding of him and what led him to commit the assaults, he responded that he thought they had discussed things prior and appeared disinclined to discuss it further. Dr. Beitchman described that C.S. “conveyed as a cold, irritable quality” and was much less forthcoming than he was during the first interview. He appeared “irritating and withholding”. The attitude shown during this interview was that he was not interested in exploring or discussing his motivation for being involved in such monstrous behaviour. This is of concern and again may detract from his rehabilitation.
e. Although C.S. maintains that his conduct on October 15, 2012 is out of character, there is prior evidence of antisocial activity. He has been involved in the criminal justice system before and appears to have been involved in it since his arrest. He was in breach of his recognizance at the time he committed these offences.
f. His score in the Pride in Delinquency questionnaire (at the 81st percentile) is somewhat higher than other youth who attended at the clinic. As such, it has raised concerns about possible anti-social attitudes.
[49] These above-mentioned factors indicate that perhaps C.S. has no appreciation of the seriousness of his misconduct due to his minimization of the facts: particularly the aggravating factors. The denial of the need for counseling is of concern. There is a lack of explanation for the offence other than: marijuana, alcohol and free time. Further, his risk for reoffending generally and sexually is moderate.
[50] The report does note that C.S. has positive traits. His academic test results demonstrate his ability to be a capable student. Of particular note is the expression of remorse he has shown to his victims. That remorse was obvious in his comments to the Court before I retired to consider the appropriate sentence.
[51] In the end, the report, properly, does not make a recommendation as between an adult or youth sentence. However, it does make certain recommendations regarding treatment, etc., all of which I have considered.
[52] C.S. is now 18 years-old. He was close to seventeen years-old at the time of these offences. The closer the offender is to the age of eighteen, the statutory demarcation between young persons and adults, the more the age factor would tip the balance towards an adult sentence over a youth sentence.
[53] Although C.S. was only a youth, he was fully capable of deciphering right from wrong. He had many opportunities to learn the difference between the two based on his family support and access to education.
[54] C.S.’s character flaws are, to a degree, a mystery given his background. His upbringing was positive – surrounded by a loving family. Parents provided financial stability and support.
[55] Progress has been made since C.S. has been in custody. Hope does exist that C.S. will be a contributing member of our society. It should be remembered, however, that this progress has been made in a structured environment coupled with his increased maturity. It should also be remembered that this progress has not been without recurring missteps when C.S. has returned to his past problematic behaviours and attitudes.
[56] This progress may continue; it may not. Given that reality and given the challenges that C.S. poses in terms of rehabilitation, there is a strong case to be made that continued monitoring is essential so that we can know whether C.S. will continue to progress or slide back to his old ways. C.S. has done well in a structured environment. This also strongly suggests that if progress is to advance further, maintaining a structured environment will be essential while the maturing process continues, while his education continues and while treatment for his issues can continue.
[57] If I gave C.S. credit on the basis of 1 day for each day spent in pre-sentence custody, it would mean that he would spend less than three more months in custody followed by 1 year of supervision. If a youth sentence were imposed and no credit were given to C.S. for his time served in pre-sentence custody, this would mean that he would receive a sentence of 2 years in custody followed by 1 year of supervision. In my view, neither of these sentences would be long enough to hold C.S. accountable for his criminal conduct.
[58] It is my view that a youth sentence imposed in accordance with the purpose and principles set out in the YCJA, ss. 3(1)(b)(ii) and 38 would not have sufficient length to hold C.S. accountable for his offending behaviour. Such a sentence would not properly reflect the moral culpability of C.S. having regard to his intentional risk-taking conduct, the harm that his conduct has caused and the normative character of his criminal actions.[^10]
[59] In coming to this conclusion, it is important to recall the facts: C.S. orchestrated serious offences within minutes of each other. He preyed on a vulnerable mother – sexually assaulting her (anally and orally) while armed with a knife, masked in a public place and while her seven-year old son watched. He then victimized two other women shortly thereafter – also in a public place, also in breach of his recognizance imposed six months earlier. All victims were vulnerable to such gratuitous and significant violence.
[60] Further, a youth sentence would not sufficiently promote the rehabilitation of C.S. and his reintegration into society. There is a history of violence in that he robbed another student before the incidents in question. He was on a recognizance at the time he committed these offences. Only now and in a structured environment of the custodial facility, C.S. has made progress in his rehabilitation although his history while incarcerated in not flawless.
[61] In reaching my conclusion on this application, I have rejected the submission of counsel for C.S. that no credit should be given for the pre-sentence custody served by C.S. Such a consideration of pre-sentence custody is statutorily mandated by s. 38(3)(d) of the YCJA. It provides that pre-sentence custody “shall” be taken into account in the imposition of any youth sentence. As such, I conclude that the pre-sentence custody of 21.5 months cannot be ignored. To do so would “artificially justify the imposition of an otherwise inappropriate youth sentence”.[^11] I recognize that there may be cases where such an approach is justified but this is not one of them.[^12]
[62] In light of all of the above, I am satisfied that an adult sentence must be imposed on C.S.
A. The Appropriate Sentence
[63] Having determined that the imposition of an adult sentence is warranted, the question becomes: what should it be? Crown counsel submits that the appropriate sentence is 6-8 years. Counsel for C.S. submits that the appropriate sentence is: 3-4 years.
[64] In consideration of this aspect of sentencing, s. 74(1) of the YCJA provides that all of the usual sentencing principles applicable to adults in the Criminal Code are to be considered. Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely:
a. to denounce unlawful conduct;
b. to deter the offender and others from committing offences;
c. to separate offenders from society where necessary;
d. to assist in rehabilitating offenders
e. to provide reparations for harm done to victims or the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[65] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[66] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of their liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[67] Bearing these principles in mind, I also consider that the adult sentences available for the crimes committed by C.S. include a maximum sentence of 14 years for the offence of sexual assault with a weapon and life for robbery.
[68] Counsel have both provided cases to the court that support their submissions on sentencing. Counsel for C.S. provided several cases, one of which is R. v. J.E.T.[^13] J.E.T. was 17 years of age when he sexually assaulted a 43 year-old woman he had known since childhood. He had sexual intercourse with her, threatened her with a baseball bat and threatened to tie her up with an electrical cord. He pleaded guilty to the offence. It was noted that he was well entrenched in the criminal subculture, showed little remorse, had a prior record for breaches of court orders and a prior conviction for sexual interference. The present offence was committed while on a recognizance.
[69] An adult sentence was imposed on J.E.T. The circumstances of the offence were serious and the impact on the victim immeasurable. His history showed that he was unable to comply with court orders and he had exhausted all programming available in the youth system. J.E.T.’s risk to re-offend was high. The court considered J.E.T.’s age (18 at the time of sentencing) and found that rehabilitation was of primary importance. However, due to the seriousness of the offence, society’s disapproval, deterrence and protection of society needed to be adequately addressed. J.E.T. was sentenced to 6 years in prison.
[70] Crown counsel provided a case to the court that was equally compelling: R. v. Assing.[^14] Mr. Assing was not a young offender. He was 33 years of age at the time. He grabbed a complete stranger, held a knife to her, asked her for money, pushed her through a forest and took her to a vacant townhouse. While there, he hit her, tied her hands behind her back and raped her vaginally – twice. Mr. Assing was convicted by a jury and was a first time offender. He was sentenced to 9 years in prison.
[71] These two cases demonstrate that no two sentencing cases are alike. Each offender must be sentenced for the particular offences he or she committed after also considering his personal background and other relevant factors. These cases, however, provide assistance in determining the appropriate range of sentence for similar offenders. These cases demonstrate to this Court that the range of sentence proposed by Crown counsel is appropriate.
[72] I consider the following to be the aggravating factors when sentencing C.S.:
a. The attack on the victim during the sexual assault was violent and brutal. It was an attack on a vulnerable victim that occurred in a public place in the presence of the victim’s seven year old son.
b. The first attack was degrading and humiliating. C.S. was no less than callous during the offences.
c. The second attack on two unsuspecting women occurred within minutes of the first offence on October 15, 2012 and again, it involved an attack by a stranger on two victims in a public place.
d. C.S. was armed with a knife during both incidents and used it in a threatening and menacing manner to gain the compliance of the victims.
e. The damage caused to both the victim and her son in the first incident is unimaginable. The damage caused to the two victims thereafter is equally horrific.
f. Acts such as those committed by C.S. on October 15, 2012 not only have an effect on the victims but the community as well. He attacked three unsuspecting women in broad daylight in a place where all should feel safe.
g. C.S. is unable to give an explanation for why the attacks occurred. He seems to blame free time and the mix of marijuana and alcohol. He shows little insight as to why these offences occurred.
h. The unexplained conduct, especially the sexual attack, indicates that C.S. is a dangerous person from whom the public deserves protection.
i. Despite the guilty plea and his acknowledgment of the facts giving rise to the pleas, he has been unable to acknowledge the extent of his conduct in the sexual assault thereby minimizing and denying elements of the offences which he had previously accepted as true. This raises concerns that he has not developed a realistic plan to prevent problems in the future.
j. C.S. expressed that he had had enough counseling to date although he did indicate that he would participate in accordance with the terms imposed by the court.
k. C.S. appears to have no insight into the harm he has caused to both the victims and the community. He appears unable to empathize with the victims.
l. His behaviour during the assessment process demonstrated a “Jekyll and Hyde” type personality. During the first interview of the assessment, C.S. appeared affable. During the second interview, he appeared “irritated” and demonstrative of an attitude that he was not interested in either exploring or investigating what might have motivated him to commit such heinous offences on October 15, 2012. As Dr. Beitchman stated in his assessment: “…he was unable or unwilling to explore the basis of his behaviour, attributing it simply to being out of character or due to his use of alcohol and marijuana raises concerns that he is reluctant to come to grips with this aspect of his character, and consequently, it contributes to elevating his risk of future sexually deviant behaviour and the risk to reoffend”.
m. C.S. has been involved in the criminal justice system in the past and was on a recognizance at the time he committed these offences.
n. His risk for reoffending both generally and sexually is moderate.
o. Although there have been many accomplishments since being incarcerated, there have been some setbacks as well. C.S. has been the subject of some occurrence reports and is facing further criminal charges arising from incidents at the custodial facility.
[73] I consider the following to be mitigating factors when sentencing C.S.:
a. C.S. was a youth at the time these offences were committed.
b. He has achieved some success while incarcerated, including his high school education.
c. C.S. has a supportive family. He reports positive relationships with his peers and his girlfriend.
d. There is some willingness to participate in counseling.
e. He pleaded guilty which is a sign of remorse.
f. He has expressed remorse to the court and during his assessment.
g. While in custody, C.S. has been described as “pleasant to work with” and has a great sense of humour. He has also been described as “bright” and reasonably articulate.
h. C.S. is ambitious and has articulated a desire to attend university and be employed legitimately.
[74] Needless to say, the circumstances of the two incidents on October 15, 2012 are extremely serious. The conduct is reprehensible and the consequences immeasurable. Such offences must be dealt with by sentences that reflect and are proportional to the gravity of the crimes. Obviously there is a need to denounce and deter such crimes while adequately protecting the public.
[75] While I must consider whether a lesser sentence meets the ends of justice in sentencing a youthful offender, I also have a responsibility to protect the public. The offences in this case are of such a serious nature and C.S.’ conduct while in custody is not flawless. I am also mindful that as a youthful offender, the sentence should not be so crushing as to inhibit his prospects for rehabilitation. In this case, such a sentence should reflect the youth of C.S. and the positive steps he has taken while in custody towards his rehabilitation which may continue while incarcerated.
[76] Before taking into account credit for pre-sentence custody, I find that a global sentence of 6 years addresses the principles of sentencing. It is a fit sentence that achieves an appropriate balance amongst the objectives of denunciation, deterrence, protection of the public and rehabilitation.
Pre-Sentence Custody
[77] C.S. has been incarcerated for 21.5 months. Although C.S. has been incarcerated in youth facilities where he has been able to complete his education, pursue training for employment and participate in rehabilitative programs, I will give him credit of 1.5 days for each day spent in pre-sentence custody.
[78] I give such credit recognizing that the conditions are less onerous in the youth facility than the adult facility. However, in all of the circumstances, I am prepared to exercise my discretion to grant enhanced credit at the rate of 1.5 days for each day spent in custody as jointly submitted by both Counsel. This is, in my view, permissible as an exercise of my discretion as set out in s. 719(3.1) of the Criminal Code and the Supreme Court of Canada in R. v. Summers. In essence, C.S. has lost remission parole eligibility since being incarcerated.
[79] As such, C.S. is given credit for 32 months in presentence custody (21.5 months x 1.5). He is sentenced to: 72 months (6 years) less 32 months (2 years, 8 months) for a total of 40 months (3 years, 4 months) remaining to be served.
[80] The sentence will be served as follows:
| Offence | Sentence |
|---|---|
| Count 1: Sexual assault with a weapon. (Knife) | 4 years in custody less 2 years, 8 months’ pre-sentence custody.[^15] |
| Count 2: Robbery with a weapon (Ms. C.F.L.). | 1 year concurrent. |
| Count 3: Did have his face masked when committing an indictable offence. | 6 months concurrent. |
| Count 5: Robbery with a weapon (Ms. Woon Ting Chan). | 1 year consecutive to Count 1. |
| Count 6: Assault with a weapon (Ms. Kwai Fun Chan). | 6 months consecutive to Count 1. |
| Count 7: Did have his face masked when committing an indictable offence. | 6 months concurrent. |
| Count 10: Breach of recognizance. | 6 months consecutive to Count 1. |
[81] Both counsel have agreed to the imposition of the following ancillary orders:
a. A firearms and weapons prohibition for life pursuant to s. 109 of the Criminal Code.
b. The provision of a DNA sample pursuant to s. 487.051(1) of the Criminal Code for the primary designated offences of sexual assault and robbery.
c. An order pursuant to ss. 490.012 and 490.0143(2)(b) of the Criminal Code that C.S. must comply with the Sexual Offender Information Registration Act, S.C. 2004, c. 10 for a period of 20 years.
[82] As required by s. 76 of the YCJA, I will proceed to hear submissions in relation to the placement of C.S. while he serves his sentence.
___________________________
Kelly J.
Released: July 22, 2014
COURT FILE NO.: YC/13/300000/4
DATE: 20140722
ONTARIO
SUPERIOR COURT OF JUSTICE
YOUTH CRIMINAL JUSTICE COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
C.S.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
reasons for sentence
Kelly J.
Released: July 22, 2014
[^1]: C.S. was born on [...], 1995. [^2]: S.C. 2002, c. 1 [^3]: Pursuant to s. 719(3.1) of the Criminal Code, R.S.C., 1985, c. C-46. [^4]: As per s. 72(1)(b) of the YCJA. [^5]: See: R. v. O.(A.) 2007 ONCA 144, 2007, 218 C.C.C. (3d) 409 (Ont. C.A.) at para. 38 [^6]: See: R. v. B. (D.), 2008 SCC 25, [2008] 2 S.C.R. 3 [^7]: MD, FRCPC, Staff Psychiatrist: Adolescent Service, Child, Youth and Family Services at CAMH. [^8]: See: s. 3(1)(b)(ii) of the YCJA. [^9]: See: R. v. O.(A.) and R. v. H.L. 2013 ONSC 7050, 2013 ONSC 7050 at paras. 36 and 37 [^10]: See: R. v. O. (A.) at para. 47 [^11]: See: R. v. H.L. at para. 43 [^12]: See: R. v. D.W. 2008 ONCA 268 [^13]: [2005] B.C.J. No. 206 [^14]: 2008 CanLII 58607 (ON SC), [2008] O.J. No. 4527 [^15]: This sentence might have been longer but I have reduced it in consideration of the principle of totality.