His Majesty the King v. Y.S., 2025 ONSC 2868

CITATION: R. v. Y.S., 2025 ONSC 2868

COURT FILE NO.: CR-24-158-00AP

DATE: 20250512

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Y.S.

Appellant

M. McGuigan, for the Crown/Respondent

C. Pasqualino, for the Appellant

HEARD: May 12, 2025

REASONS FOR DECISION

[On appeal from the judgment of the Honourable Justice J.A Crawford of the Ontario Court of Justice dated July 12, 2024]

CONLAN J.

1This is a summary conviction appeal brought by Y.S. He appeals against sentence only.

2Counsel for the appellant, Mr. Pasqualino, has done a commendable job on behalf of his client. He has cited the leading case on appeals against sentence, R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and he has submitted with passion and vigour that the court below erred in imposing a conditional sentence of imprisonment (six months) instead of a conditional discharge.

3Unfortunately, despite counsel’s able submissions, I think that the appeal must be dismissed. With respect, I see no reason for this Court to interfere with the sentence imposed on Y.S. No error was committed by the sentencing judge. Further, the sentence imposed is not demonstrably unfit.

I. The Background

4Y.S. was being tried in the Ontario Court of Justice. Mid-trial, he entered guilty pleas to and was found guilty of criminal harassment contrary to section 264(2)(c) of the Criminal Code and four counts of indecent act contrary to section 173(1)(a) of the Criminal Code. Succinctly put, Y.S. was found to have harassed a female who was walking on a public trail system in Oakville, Ontario and, further, to have exposed his bare penis to at least four other females in that same area. The five offences occurred on four different dates in August and September 2021.

5The appellant was just 18 years old when he committed the offences. He was 21 years of age at the time of sentencing.

6At the sentencing hearing, which took place after the findings of guilt were entered in order to permit the preparation of a presentence report and the filing of other material by the defence, which other material included a report from Albert de Goias (retired medical doctor and the founder and program administrator of Prometheum Institute, a private rehabilitation and educational facility for the treatment of substance abuse and behavioural disorders), the Crown requested a six-month conditional sentence order, probation for three years, and ancillary orders. The defence requested a conditional discharge order attached to probation for twelve to eighteen months.

7The sentencing judge reserved on the decision.

8About one month after submissions were made, in lengthy reasons for sentence delivered orally, the sentencing judge imposed upon Y.S. a conditional sentence order for six months, to be followed by eighteen months of probation, and ancillary orders.

II. The Arguments on Appeal

9Mr. Pasqualino has appropriately focussed his approach. In brief submissions to this Court, he made two arguments:

(i) that the sentencing judge erred in ignoring the opinions of Mr. de Goias about the limited mental development of Y.S.; and

(ii) that the sentencing judge erred in her assessment of the public interest consideration for the granting of a conditional discharge.

III. The General Test on an Appeal against Sentence

10Appellate courts should not intervene lightly when it comes to sentence. The question is not whether this Court believes that a different sentence ought to have been imposed. Rather, this Court owes significant deference to the decision of the sentencing judge. Absent a material error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors (put another way, the erroneous consideration of an aggravating or mitigating factor), this Court should intervene to vary the sentence imposed below only if that sentence is found to be demonstrably unfit. I have used the word “material” because an error in principle, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the sentencing decision that such an error had an impact on the sentence that was imposed. Lacasse, supra, at paragraphs 39-44.

IV. The Application of the Test in our Case

11First, respectfully, in my view, the sentencing judge did not ignore the opinions of Mr. de Goias about the limited mental development of Y.S.

12In fact, at page 8 of the transcript of the reasons for sentence, the judge referred to those opinions. She accepted that Y.S. was a young man and immature in his thinking at the time that he committed the offences. What she did not accept is that “there is an emptiness of mental development or that there is a cognitive deficit”. The sentencing judge thoroughly explained why she did not place any weight on the latter impressions formulated by Mr. de Goias.

13The alleged error made by the sentencing judge is that, like the trial judge did in R. v. Virani, 2012 ABCA 155, a decision relied upon by counsel for the appellant, she summarily excluded from consideration evidence that was relevant to sentencing.

14With respect, that submission ignores two things. First, Virani, supra is a case about admissibility – “the admission of relevant evidence as to sentence” (paragraph 11). Our case is one about weight, not admissibility. Second, the sentencing judge did not ignore or “summarily exclude” the opinions of Mr. de Goias about an alleged empty mental development and an alleged cognitive deficit on the part of Y.S. To the contrary – she acknowledged those opinions but gave them little or no weight. She was entitled to do that, provided that she explained why, which she did.

15Second, with respect, the sentencing judge did not err in her application of the test for the granting of a conditional discharge, specifically the public interest criterion.

16The alleged error made by the sentencing judge is that she improperly equated the public interest with general deterrence, ignoring the broader perspective which includes rehabilitation and employment considerations.

17Respectfully, a reading of the reasons for sentence as a whole does not support the argument that the sentencing judge focussed exclusively on general deterrence. She specifically referenced the principle of rehabilitation at page 10 of the transcript of the reasons. At page 16, she expressly noted that Y.S. had, at the time of sentencing, already made significant steps towards rehabilitation, through counselling and through his work with Mr. de Goias. She again referred to the importance of rehabilitation at page 18 of the reasons, explaining how the conditional sentence and probation orders would reinforce that principle. Even at the penultimate section of the reasons for sentence highlighted by counsel on behalf of the appellant, at page 18, where the sentencing judge concludes that a conditional discharge would be contrary to the public interest, the sentencing judge does not rely exclusively on the notion of general deterrence. Rather, she refers to the seriousness of the offences, general deterrence, and specific deterrence.

18In summary, it is not accurate to characterize the sentencing judge’s analysis of the public interest criterion for a conditional discharge as being nothing more than heeding the principle of general deterrence.

V. Conclusion

19Notwithstanding the good work of Mr. Pasqualino, for these reasons, the appeal must be dismissed. It is not argued that the sentence imposed is demonstrably unfit. This Court does not find that the sentencing judge erred in either of the two ways urged by counsel on behalf of the appellant. In those circumstances, there is no basis for this Court to intervene.

Conlan J.