R. v. J.L., 2016 ONCJ 594

S. Caponecchia J. Passi Counsel for the Crown Counsel for J. L. CITATION: R. v. J.L. , 2016 ONCJ 594 ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT IN THE MATTER of the Youth Criminal Justice Act S.C. 2002, c.1 HER MAJESTY THE QUEEN v J. L. ********** P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE STRIBOPOULOS on September 2, 2016, at BRAMPTON, Ontario ********** APPEARANCES : ONTARIO COURT OF JUSTICE

T A B L E O F C O N T E N T S WITNESS Examination In-Ch. Cross- Examination Re- Examination E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE ********** Legend [sic] – indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – indicates preceding word has been spelled phonetically. Transcript Ordered: September 7, 2016 Transcript Completed: September 30, 2016 Date Counsel Notified: September 30, 2016

FRIDAY, SEPTEMBER 2, 2016 R E A S O N S F O R S E N T E N C E Stribopoulos J. (Orally) : Introduction J. L., a young person under the Youth Criminal Justice Act (the YCJA ) pled guilty before me to three offences, procuring a person under the age of 18 years to provide sexual services for consideration, receiving a financial or material benefit from the sale of sexual services and advertising the sale of sexual services, contrary respectively to sections 286.3(2) , 286.2(1) , and 286.1(1) of the Criminal Code of Canada . These are my reasons for sentence with respect to this matter.

Circumstances of the Offences In the summer of 2015, J. was 17 ½ years old. He had just finished Grade 11 and was scheduled to commence his final year of high school that fall. In February 2015, J. met V. M., at a party. After that, they started following one another on Twitter. In early July of 2015, J. messaged V. and she answered back. Although she initially thought he was contacting her to socialize, his motivation was in fact far more malevolent.

J. quickly turned the subject of the discussions to making money and began the unseemly enterprise of persuading V. that working as a prostitute with his assistance would be a good way to make a lot of it quickly and with minimal effort. J. was convincing and V. quickly agreed to his proposal. In fact, V. was so taken by J.’s sales pitch that she decided to ask her friend, A. R., if she might also be interested. To that end, V. shared the messages that J. had sent to her with A. and she too was quickly convinced to join the enterprise.

As a result, the two girls agreed to meet up with J. on the afternoon of July 6, 2015, for the purpose of executing the plan to enter into the sex trade under his direction and with his assistance. At the time V. and A. were respectively just 15 and 16 years of age. They had only just finished grade 10. Importantly, at the time, J. was fully aware of how young both girls were. On the afternoon of July 6, 2015, V. and A. met up with J. at the Square One Shopping Centre in Mississauga. They were surprised by the presence of two other people, D.

A., who was 18 at the time, and an older unidentified male (who defence counsel advises was D. A.’s much older brother).

From Square One, the group travelled together in a car to the Avenue Motel at 1060 Dundas Street in Mississauga. Once at the motel, D.s’ older brother rented a room for them. After that J. and the two girls went to the room that was rented. Once there, J. had the girl’s forward pictures they had taken of themselves to him. He used those photos, with D.’s assistance, to post ads on “Backpage,” which is a website where sex trade workers advertise their services to prospective customers. Once the ads were posted the girls began to see customers.

Throughout, J. guided the girls as they descended into the seedy world of the sex trade. He instructed them on how much to charge their customers and told them to obtain payment up front. He gave them direction on what to say to their customers. For example, he told the girls to use pseudonyms and to lie to customers about their ages and claim that they were 18 or 19. He supplied them with condoms. He handled all communications with prospective customers who responded to the ads, navigating their arrival to the motel room, at which point the girls were required to take over. Throughout, D. was in the background.

It would appear that he was busy elsewhere in the motel, possibly pimping other girls. V. and A. were J.’s charges. He was their pimp and he played the

part convincingly with periodic guidance from D., with whom he was in constant contact by text. The girls worked as prostitutes on the evening of July 6 th and into the morning of July 7 th . They left the motel for a period on July 7 th but returned to continue working that evening. They saw more customers on the evening of July 7 th and into the morning of July 8 th . The enterprise came to an end on July 8 th . That morning while V. M. was with a customer at the motel, J., D. and A. went to a nearby McDonald’s. Thankfully their behaviour there struck Constable Lee as suspicious and he investigated.

This ultimately led to their arrest. At the time of his arrest, J. had $360 in his possession. It deserves mention that J. immediately confessed to the arresting officer that he and D. were, “Running girls out of the motel.” Over the course of two days, V. saw a total of five customers, while A. saw four customers (one of whom she saw twice). The girls engaged in a variety of sex acts with these men in exchange for money. By the end of the two days, V. had collected $580 and A. had collected $410 from their respective customers. The girls had been told that they would keep 60 percent of the money they earned.

However, the girls did not retain any of the funds. Instead, almost immediately after each customer left the motel room either J. or D. would collect the money from them. Over the course of two days, the only money that was given to the girls was $20 to pay for food at McDonald’s. The police investigation revealed that during the two-day period when the girls were being prostituted, 16 different Backpage ads were posted featuring their photographs. It would appear that both J. and D. took turns posting these ads.

The police investigation also yielded a substantial amount of electronic evidence capturing text communications between the girls and J., as well as between J. and D.. (I note, parenthetically, that at one point J. had actually instructed the girls to delete their text messages telling them that if they were discovered they could get in trouble.) These communications paint a troubling picture. For example, at one point J. had suggested to V. that if a particular customer returned again they should plan to rob him.

He became annoyed with her when she indicated she was not interested in participating in something like that. These texts, especially between J. and D., also provide piercing insight into J.’s attitude towards the girls. The tone and content is disturbingly misogynistic. In short, it is apparent that J. viewed both girls as little more than objects to be manipulated for his benefit. That said, these same texts reveal that as between D. and J., it was D. who was the more experienced in the sex trade. In the end it was J. who was continually turning to D. for advice.

As a result it would appear that D. was more likely the person who introduced J. to the idea of pimping rather than the other way around. (I note, parenthetically, that this is in fact what J. claims in a written statement he prepared that was filed as an exhibit on sentencing.) Neither V. nor A. chose to provide victim impact statements. Nevertheless, common sense suggests that for both, the fact that at such a

young age some of their earliest sexual experiences were with adult men in the context of the sex trade could potentially continue to have an emotional impact on them in years to come. I note, for example, that the Agreed Statement of Fact that formed the basis of the guilty pleas indicated that V. cried during her first sexual experience as a prostitute. Similarly, after one of her experiences with a customer, A. was so upset that she texted J. to say that she, “wanted to die.” Circumstances of the Offender J. is now 18 years old. He comes before the court with no prior youth or adult record.

In other words, he is a first offender. J. was born and raised in Peel Region. His biological parents separated when he was just an infant. The breakdown of the relationship was the result of his mother’s substance abuse and mental health difficulties. In the period immediately after the separation, J.’s biological mother had custody of him and his twin brother. She quickly proved incapable of caring for the boys and she left them with her parents. As a result, J. has essentially had no contact with his biological mother since he was a toddler. J. was about four years old when his father, R.

A., successfully moved to obtain custody of him and his brother. Around that same time, in approximately 2002, Mr. A. met and then married C. L. She has a daughter from a prior relationship who is four years younger than J. In time, J. and his brother came to regard Ms. L. as their mother and her daughter as their sister. J. clearly has a great deal of affection for Ms. L. These feelings would appear to be mutual. She describes J. as very respectful in his dealings with her, his brother, and his stepsister. Unfortunately, the marriage between Mr. A. and Ms.

L. ended four years ago just as J. was entering high school. At that point, his father was solely responsible for parenting his sons. Although his stepmother continued to have contact with J. and remains very much supportive of him, she was no longer in his life on a daily basis through his critical high school years. Instead, his father was primarily responsible for parenting J. during that period. Unfortunately, due to his father’s work

schedule and his lifestyle, J. and his brother were frequently alone in the evenings and left to care for themselves during their high school years. At least in recent years, the relationship between J. and his father appears to have been punctuated by a fair amount of conflict. It would seem that J. has some rather negative feelings towards his father whom he blames for the end of the relationship with Ms. L., the only mother figure that he has ever known. Although J.’s father clearly cares for him, it appears as though he has sometimes been overwhelmed by the challenges of parenting two teenage boys alone.

The result has been a dynamic that can be fairly described as dysfunctional. It was apparently J.’s desire to escape his father’s home that led him to commit the offences for which he is being sentenced. In short, J., with the seeds of the idea apparently planted by his high school friend, D. A., came to believe that prostituting the two victims would provide him with the money necessary to move out of his father’s home along with his brother. These offences are a surprising turn for J. Prior to their commission there was simply no sign that he was a young man who was likely to come into conflict with the law.

Before his arrest, and over the course of the last year while on bail, J. attended ◼ ◼ ◼ Secondary School where he earned relatively decent grades. Ms. N. B., a child and youth worker at the school, describes J. in very positive terms.

She reports that he was a good student who was well regarded by other students and teachers. J. never had any difficulties with attendance nor did he ever have any disciplinary issues at the school. Although subject to relatively restrictive bail conditions following his arrest, J. was permitted to be out of the house to attend school. Over the last year he managed to complete his last few high school credits and graduated in June of 2016. Upon graduation, J. received an award from the school as did his brother.

The award honours students who manage to successfully graduate and overcome difficult personal circumstances in the process. While attending school, J. also worked at McDonald’s on a part-time basis. He held that job for about a year prior to his arrest. The employment ended because of the restrictive bail terms to which he was subject following his release. Following his arrest in July 2015, J. was placed on bail.

The terms of his bail were relatively restrictive, as mentioned, confining him to his father’s residence subject to some relatively narrow restrictions including for medical emergencies involving him or members of his immediate family, to attend court or meet with his lawyer, or while travelling directly to, from, or while at school, or while in the presence of one of his two sureties. On January 29 th , 2016, the bail order was varied to expand the exceptions to allow J. to also be outside of his house if he was in the presence of either Ms. L. or his paternal aunt.

Based on the evidence, mainly because of challenges of geography, it would appear that there were relatively few visits with either during the past year. In terms of his future, J. aspires to become a plumber. With the assistance of Ms. B., arrangements have been made for a placement commencing this September. He is scheduled to spend two weeks at ◼ ◼ ◼ Secondary School after which he will be placed with a plumber through a program run by Sheridan College. J.’s paternal uncle is a plumber and he has expressed a willingness to assist him in realizing his career aspirations.

As part of the sentencing materials, two letters prepared by J. were filed as exhibits. One was a letter of apology to the two victims. The second was a statement in which J. attempts to explain the reasons for his actions, takes responsibility for his wrongdoing, and expresses what seems to be genuine remorse for his crimes. Positions of the Parties The parties are far from agreed on the appropriate disposition in this case. On behalf of the Crown, Ms.

Caponecchia argues that given the gravity of these offences and J.’s level of culpability in their commission, a custodial sentence in the range of 9 to 12 months is the appropriate disposition. In seeking a custodial sentence, Ms. Caponecchia submits that the door to custody is open in this case under both subsections 39(1)(

a) and 39(1)(

d) of the Act. With respect to subsection ( a ), she submits that at least in relation to V., who was just 15 years old at the time, any sexual activity involving her and someone five years older than she was, would by definition constitute the offences of sexual assault and sexual interference. See Criminal Code , sections 151, 151.1(1), and 151.1(2.1). As a result, Ms. Caponecchia argues that by enlisting and encouraging V. to engage in such acts, J. is essentially a party to sexual assault and sexual interference. Each undoubtedly qualifies as a, “violent offence,” under subsection 39(1)(

a) and therefore a custodial disposition is available. Alternatively, cognizant of the Supreme Court’s decision in R. v. D(C); R. v. K(C.D.) , [2005] 3 S.C.R. 688 , which limits the definition of a violent offence under subsection ( a ), to situations where a young person causes, attempts to cause or threatens to cause bodily harm (at paragraphs 17 and 70), Ms. Caponecchia submits that I should draw a common sense inference that involving these young victims in prostitution occasioned psychological harm to them that qualifies as “bodily harm”. As a result, Ms. Caponecchia, submits that custody is an available disposition under subsection 39(1)( a ).

In addition, with respect to subsection 39(1)( d ), Ms. Caponecchia argues that this is the sort of exceptional case where the aggravating circumstances are such that a non-custodial sentence would be inconsistent with the purposes and principles of sentencing.

In that regard she emphasizes a number of factors, including: the active role that J. played throughout in enlisting and pimping both girls; his callous indifference towards their well-being; his exploitative and demeaning mindset towards them as revealed by his text messages with D.; the planning that went into these crimes; and, finally, the ongoing nature of these offences. Although conceding that J.’s guilty plea is a mitigating factor, Ms. Caponecchia submits the significant aggravating features in this case far outweigh the mitigating.

In the end, she submits that a non-custodial sentence would be inconsistent with the purpose and principles of sentencing under the Youth Criminal Justice Act . Finally, Ms. Caponecchia submits this is not a case where deferred custody would be appropriate. First, the maximum length of such a sentence is 6 months, which she contends is too short given the aggravating features in this case. Further, she submits that the availability of such a sentence is foreclosed by subsection 42(5)( a ), which makes such a sentence unavailable where, “a young person causes or attempts to cause serious bodily harm.” Ms.

Caponecchia argues that it is apparent from the facts that J. either intended or, more likely, was willfully blind to the fact that his actions would cause the victims serious bodily harm. Beyond the custodial portion of the sentence, Ms. Caponecchia submits that I should also place J. on probation, impose a weapons prohibition for two years, order the forfeiture of the money seized by police upon his arrest, and order that a sample of his blood be taken for inclusion of his DNA profile in the National DNA Data Bank . In contrast, Mr.

Passi, on behalf of J., argues that a non-custodial sentence would be appropriate in this case. In making that submission he notes the emphasis placed throughout the YCJA on the rehabilitation and reintegration of young persons, which are especially important considerations in the context of sentencing youth. See YCJA , subsections 3(1)( a )(ii), 3(1)( b )(i), 38(1), 38(2)( e )(ii). Unlike adult sentencing where denunciation and general deterrence can trump concerns regarding rehabilitation, he submits that this is never the situation for young persons. In Mr.

Passi’s submission, this is not a case where one of the gateways to a custodial sentence is open under section 39(1) of the Act . With respect to Section 39(1)( a ), he emphasizes the restrictive

interpretation the Supreme Court gave to that provision in R. v. D(C); R. v. K(C.D.). Absent evidence that J.’s offences occasioned actual psychological harm to either victim, Mr. Passi argues that this gateway to custody remains closed. Turning to section 39(1)( d ), while he acknowledges that there are aggravating features in this case, Mr. Passi contends that these are not of such a magnitude that anything less than a custodial sentence would be incapable of vindicating the purpose and principles of sentencing under the YCJA .

In short, he argues that this case does not include the sort of exceptional circumstances that would serve to make a custodial sentence obligatory. With the door to custody closed, Mr. Passi points to the requirement under the YCJA that any sentence imposed, “must be similar to sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.” See YCJA Subsections 38(2)( b ). In that regard, Mr. Passi relies on the sentencing decision of my sister, Justice Maresca, in R. v.

D.G. , an unreported sentencing decision in a youth matter released on October 30 th , 2014. The decision is from this region involving a young person, 17 at the time, who committed similar offences to those involved in this case, involving three 16-year-old victims. In that decision, Justice Maresca imposed a sentence of 24 months’ probation. Mr.

Passi points to the decision in D.G. , combined with the obligatory language in subsection 38(2)( b ), to argue that I am essentially bound to impose a sentence of probation in this case with conditions tailored to address J.’s specific needs in terms of his rehabilitation and reintegration. To do otherwise, he submits, would require that I conclude that the decision in D.G. was in error.

Finally, I note that Mr. Passi took no position regarding the various ancillary orders sought by the Crown. Governing Principles and the Appropriate Sentence The purpose of sentencing under the YCJA is to hold young persons accountable for their offences by imposing just sanctions that serveas a meaningful consequence for them and that also serve to promote their rehabilitation and reintegration into society, therebycontributing to the long term protection of the public. See YCJA section 38(1).

In deciding upon the appropriate sentence in this case, I must be guided by the principles set out in subsections 38(2) and the factorsenumerated in subsection 38(3) of the Act. As noted, the parties disagree on whether or not this is a case for which custody is an available disposition. I am only to consider acustodial sentence if the pre-conditions for doing so are met under section 39(1) of the Act. Given that J. is a first offender, subsections39(1)(

b) and (

c) have no application here. I therefore begin with subsection 39(1)(a). The question posed is whether or not any of the offences for which J. has been found guiltyconstitute a “violent offence,” as that term has come to be interpreted. Emphasizing that one of Parliament’s goals in enacting the YCJAwas to restrict the use of custody, the Supreme Court held that this provision ought to be interpreted narrowly. See R. v. D(C); R. v.K(C.D.),2005 SCC 78 , [2005] 3 S.C.R. 668 at paragraph 50.

The Court ultimately settled on a harm based definition holdingthat the term “violent offence” means, “an offence in the commission of which a young person causes, attempts to cause or threatens tocause bodily harm.” See paragraph 70. Returning to the circumstances of this case, there is no suggestion in the record that J. resorted to violence or threats of violence to enlistthe victims into prostitution or to maintain them in that endeavour once it was underway.

Despite this, the question remains whether or not through the commission of these offences J. caused either girl “bodily harm,”remembering that that term includes, “any hurt or injury to a person that interferes with the health or comfort of the person and that ismore than merely transient or trifling in nature.” Criminal Code,

section 2. An individual’s health or comfort obviously extends beyondthe physical and reaches their well-being on an emotional or psychological level. See R. v. McCraw, (SCC), [1991] 3S.C.R. 72 at page 81.

Ultimately, bearing in mind that V. and A. were respectively just 15 and 16 years old at the time, that they had intimate photos ofthemselves posted on-line, that over a two day period they engaged in a variety of sex acts with men who were complete strangers tothem and who were many years older than they were, it is impossible not to conclude that these events would have impacted on theiremotional well-being in a manner that was more than transient or trifling. There is evidence to clearly support this conclusion in the record.

For example, the Agreed Statement of Fact notes that V. cried duringher first sexual experience as a prostitute. Similarly, A. was so upset during one of her encounters that she texted J. afterwards to reportthat she, “wanted to die.” More generally, I think common sense compels this conclusion. After all, as Chief Justice Dickson noted, prostitution, by its verynature, involves the exploitation, degradation and subordination of women. See Reference Re Subsections 193 and 195.1(1)(

c) of theCriminal Code, (SCC), [1990] 1 S.C.R. 1123 at 1135. These pernicious effects are undoubtedly far more pronouncedwhere those who are prostituted are children. Therefore, despite the absence of Victim Impact Statements from either V. or A., I am satisfied beyond a reasonable doubt that theseoffences occasioned “bodily harm” to them in the sense of interfering with their emotional health in a manner that was more thantransient or trifling. As a result, I am satisfied that J.’s crimes constitute violent offences for the purposes of subsection 39(1)(

a) of theAct. The door to a custodial sentence in this case is therefore open. Given this conclusion, it is not strictly speaking necessary for me to go on and consider whether or not a custodial sentence is also

available because of subsection 39(1)(d). Nevertheless, given that the parties fully argued the point, out of an abundance of caution, Ithink I should proceed to at least briefly consider it. I have carefully reviewed the guidance provided by the Court of Appeal in R. v. R.E.W. (2006), (ON CA), 74 O.R.(3d) 1 (C.A.), regarding the meaning of that subsection. In the end, although there are indeed a number of aggravating features in thiscase, I am not convinced that they are of such a magnitude that nothing less than a custodial sentence is necessary to vindicate thepurpose and principles set out in

section 38 of the YCJA. As the Court of Appeal noted, “the exceptional case gateway can only be utilized in those rare cases where the circumstances of thecrime are so extreme that anything less than custody would fail to reflect societal values.” By way of example, the Court noted that thetest would be met, “when the circumstances of the offence are shocking to the community.” R.E.W. at paragraph 43. In other words,“exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can bejustified.” R.E.W. at paragraph 44.

Although I think members of the community would be seriously troubled by the offences involved in this case, I do not believe theaggravating circumstances that are present push this matter into the exceptional cases category. To be sure, cases of this nature couldqualify, but I believe that would require the presence of more significant aggravating features than those present here. For example, theuse of threats or extortion, the forcible confinement of the victims, or a course of conduct that took place over a more extended period oftime.

Absent aggravating features of that nature, I am not prepared to conclude that this is the type of case where nothing less thancustody is adequate to the task of vindicating the purpose and principles set out in

section 38 of the Act. I turn next to consider the appropriate sentence in this case, remembering the purpose and principles of sentencing found in section 38(1),and the factors enumerated in subsection 38(2). I think a useful starting point is a review of both the aggravating and mitigating factors in this case.

In terms of aggravating factors there are the following. • J.’s very active role in both enlisting and then pimping both victims; • His callous indifference towards the victims’ well-being, repeatedly placing them in harm’s way given the risks inherent in the sextrade; • The planning and deliberation involved in the commission of these offences; • The fact that the girls were prostituted over a two-day period and had a variety of sexual experiences with a number of strangerswho were much older than them; • J.’s exploitive and demeaning mindset towards the victims, as revealed by the text messages that became a part of the record onthe sentencing; and • J.’s pro-criminal mindset, reflected for example, in his efforts to hatch a plan to rob one of V.’s customers.

In terms of mitigating factors there are the following: • That J. readily confessed upon being arrested; • That he pled guilty thereby accepting responsibility for his actions and also sparing the victims the ordeal of testifying; • That he comes before the court as a first offender; • That he has successfully completed high school over the past year and has developed a plan for his future advancement; • That he has the love and support of a number of family members, including his father and Ms. L.; • That he has expressed remorse for his actions; and

• That he has not re-offended over the past 14 months and has complied with the terms of a very stringent bail order. In the end, I must fashion a sentence that represents a meaningful consequence for J. that is most likely to achieve his rehabilitation and reintegration into society. See YCJA , subsections 38(1) and 38(2)( e )(ii). The sentence imposed must be the least restrictive sentence capable of achieving these objections. See YCJA , subsection 38(2)( e )(i). It must be proportionate to the seriousness of the offences and J.’s degree of responsibility in their commission. See YCJA , subsection 38(2)( c ).

It must also promote a sense of responsibility in J. and acknowledge the harm done to the victims in the community. See YCJA , subsections 38(2)( e )(iii). After carefully considering the purpose and principles as outlined, in light of both the aggravating and mitigating factors in this case, I have ultimately concluded that this is indeed a matter that requires a custodial sentence. I am of course aware of my obligation to impose a sentence similar to sentences imposed in this region on similar young persons found guilty of the same offence committed in similar circumstances. See YCJA , subsection 38(2)( b ).

I have therefore carefully considered the only case placed before me that, at least at first glance, seems to qualify in that regard; Justice Maresca’s decision in D.G . I have not followed the lead of that decision for two reasons. First, I believe the instruction in section 38(2)(

b) is difficult to apply where the only available case law consists of a single decision. In my view, the provision is of far greater significance where there are a body of sentencing decisions which serve to set a particular sentencing range for similarly situated offenders who have committed similar offences. Taking the lead from a single decision, which could have erroneously imposed a sentence that was too lenient or too harsh, runs the risk of beginning to establish a sentencing range that is simply inappropriate. Once a body of sentencing decisions emerges for a particular offence, I think that danger is minimized and the instruction found in subsection 38(2)(

b) takes on far greater significance. Second, although there are indeed similarities between D.G. and this case, I also think there are significant differences, which distinguish this case from that one. In particular, there is an abundant record before me to suggest that J., at least in and around the time when he committed these offences last summer, harboured a very troubling anti-social pro-criminal mindset. There is no suggestion of that with respect to the young person in D.G.

In addition, the young person in D.G. had undertaken counseling in order to gain a better understanding of the reasons for his behaviour and the impact of his actions on his victims. In this case, J. has not undertaken counseling of that nature. More significantly, in my view, the written statements he has prepared that became a part of the record on sentencing leaves me with the distinct impression that his principal focus remains on how his arrest, prosecution, and restrictive bail terms have impacted on him rather than revealing very much by way of insight into the impact of his actions on his victims.

In this case, I think a custodial sentence is necessary in order to bring home to J. the gravity of his wrongdoing and hopefully shake him out of his pro-criminal mindset. I believe this is essential for helping J. to achieve some level of insight into the enormity of his wrongdoing and the emotional harm that he has caused to V. and A. Without that insight, I have serious concerns about J.’s rehabilitation and reintegration into society.

In other words, I have concluded that a custodial sentence is indeed necessary to rehabilitate J., to achieve his reintegration into society, to promote a sense of responsibility in him, and acknowledgment on his part of the harm he has caused to his victims and to the community. All of that said, I am mindful of my obligation to impose the least restrictive sentence capable of achieving J.’s rehabilitation and reintegration into society. I have therefore also considered the appropriateness of a sentence of deferred custody. In my view, such a sentence is not foreclosed by section 42(5).

Although I have concluded that J.’s offences caused bodily harm to the victims, I am not prepared to conclude, without direct evidence from either victim, that the harm occasioned rises to the level of, “serious bodily harm,” which the Supreme Court has held requires, “substantial” interference with the physical or psychological integrity, health

or well-being of the victim. McCraw at page 81. Further, I do not believe that a sentence of deferred custody would be inconsistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. In my view, in all of the circumstances, a sentence of deferred custody for six months would be the appropriate disposition in this case, followed by two years probation. I believe this sentence is sufficient to hold J. accountable for these very serious offences. It represents a meaningful consequence and importantly, it will serve to promote his rehabilitation and his reintegration into the community. In the end, I think this sentence is commensurate with the seriousness of these offences and J.’s level of responsibility in their commission.

All of that said, I am also mindful of the fact that J. has been, since the time of his arrest, on bail subject to terms that have essentially been as restrictive, if not more restrictive, in terms of constraining his liberty, than those that I would have included in any deferred custody order. He has been subject to these terms since July 10 th , 2015, which is almost 14 months. During that period he has not re- offended or breached the terms of his bail. Given this, I believe that J. has essentially already served what would have been the appropriate custodial portion of his sentence.

As a result, although a sentence of 6 months deferred custody will be recorded on the information, that portion of the sentence will also be noted as satisfied through time served. J., would please stand up?

Going forward, the sentence that I’m imposing will be as follows: You will be placed on probation for a period of two years, subject to the following conditions. • That you keep the peace and be of good behavior; • That you appear before the Youth Justice Court when directed to do so; • That you report to a youth worker immediately and thereafter if and when directed to do so by the youth worker; • That you notify the clerk of the Youth Justice Court or the youth worker assigned to your case of any change of address or any change in your employment, education or training while you are on probation; • That you live at an address approved of by the youth worker assigned to supervise you; • That you either attend school full-time or take training full-time, or seek and maintain gainful employment on a full-time basis; • That you take any counseling or programming as directed by the youth worker assigned to supervise you; • That you cooperate with the youth worker assigned to supervise you and that you sign any necessary releases to allow him or her to monitor your attendance, progress, and completion of any counseling or programming that he or she directs you to participate in; • That you not own, possess, or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance; • That you not have any contact directly or indirectly, or communicate by any means, with A.

R., V. M. or D. A., except for any incidental contact while in attendance for required court appearances; • That you not attend at any place you know A. R., V. M., or D.

A. to be, except at the courthouse for any required court appearances; • That you not be in the company of any female person under the age of 17, except if you are in the immediate and continuous presence of a responsible adult who is 30 years of age or older or any incidental contact with such a person while you are either at your place of employment or in attendance at an educational institution where you are a registered student. • Finally, that you not attend at or be present at any motel or hotel except if you are in the company of your father or any other adult approved of in advance by your youth worker.

There’s a lot there. Do you understand the various terms as I’ve explained them to you? J. L.: Yes.

THE COURT: All right, you are going to receive a written copy of these of course. Will you abide by those terms? J. L.: Yes. THE COURT: And I have to caution you that failure to abide by those terms, any one of them, is a separate serious offence for which you could go to jail, do you understand? J. L.: (No verbal response.) THE COURT: You have to say yes or no. J. L.: Yes. THE COURT: In addition, given that these are primary designated offences, I am going to make an order that a sample of your blood be taken for inclusion of your DNA in the National DNA Data Bank.

You will be required to comply with that order by no later than next Friday, September 9, 2016, by attending at Peel Regional Police, 22 Division, 7750 Hurontario Street. Further, pursuant to the combined authority of

section 51 of the YCJA and

section 109 of the Criminal Code , I am making an order that you are prohibited for a period of two years from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Do you understand the terms of that prohibition? J. L.: Yes. THE COURT: Will you follow it? J. L.: Yes. THE COURT: Okay, and I have to caution you, failure to abide by that condition is a separate serious crime as well, for which you could go to jail. Do you understand? J. L.: Yes. THE COURT: All right.

Finally, once it’s prepared and provided to me by the Crown, I will sign an order forfeiting the money that was in your possession at the time of your arrest to the Crown as the proceeds of crime. Those are my formal prepared reasons. Less formally, I just want to speak to you rather bluntly at this point, J. And I want to tell you this, what’s happened here is memorialized. There’s a record of it. The fact that you received what is effectively a custodial sentence today of 6 months is part of the court file.

If you were to come back before the court in future, that file is accessible and would be before another judge at a future point in time. They would know that you received a custodial sentence for these offences, which are in themselves very serious crimes, and that would be a significant consideration in that judge’s mind in terms of the sentence to impose at that point. The long and the short of it is, if you do something like this again, you will be going to jail. More significantly, and fortunately for you, your crimes were committed when you were a youth.

You are not subject as a result to the mandatory minimum sentence that applies to adults. Had you just been seven months older, you wouldn’t be going out that door; you would be going through that door, and you would be in the penitentiary for the next five years. That is what you were playing with. You’ve got a second chance, use it to make something of your life. Good luck to you. MR. PASSI: Thank you, Your Honour. MS. CAPONECCHIA: Thank you, Your Honour, for those very considerate reasons. The other charges, if they could be marked withdrawn.

Your Honour, I’m wanted in another courtroom, can I get you that order either later today or on Monday? THE COURT: Sure, that’s fine. MS. CAPONECCHIA: Thank you. THE COURT: I’ll sign it once you’ve prepared it, you can even bring it up to chambers.

MS. CAPONECCHIA: Okay, thank you. R E C E S S U P O N R E S U M I N G: MR. PASSI: Passi, initial J., once again on the matter of L. THE COURT: I understand from Madam Clerk, through Probation Services, that Mr. L. does have a question regarding the probation order. I know the conditions probably floated over him quite quickly earlier. There’s a concern with a respect to the condition – condition number six? MR. PASSI: Yes, sir. The concern was raised by the Probation office. I had already left the building and we just want to confirm everybody is on the same page.

I see that the word actually used by Your Honour is, “in the company of.” The concern from Mr. L.’s perspective and further echoed by the Probation office, are circumstances where he’s in the public. For example, at the gym or at the mall shopping, that he does not want to be in – if he’s not in the company of an adult over 30, he doesn’t want to be breaching Your Honour’s order. THE COURT: No, I understand. I can tell you what I mean by that. I very carefully chose the words “in the company”, because I have no difficulty with him being at the gym and young women 17 or under being in close proximity to him.

I don’t think he’s “in their company” at that point. I think he’s in their company if he goes off and he starts chatting with them. If he’s at the mall, no problem if there’s young women of that age passing by and he happens to be, you know, moving in the opposite direction. What he can’t do, of course, is cozy up to them in the food court and start chatting with them. It’s – “in the company” to me means being – I’ve tried to capture a concept that I think we all understand in terms of the kind of social interaction that I want to preclude him from engaging in with women of those tender years.

That’s my understanding. Maybe I haven’t been sufficiently precise. I mean, I’m open to suggestions in terms of language that might better capture what I’m trying to get at. MR. PASSI: Having received a copy just moments ago and seeing that the operative word is “company”, I think this captures Your Honour’s intention and I’ll explain it further to J. THE COURT: Sure. MR. PASSI: Given we are discussing condition six, would Your Honour consider a further exception, namely and specifically with respect to Mr. L.’s step – his sister, M... THE COURT: I should have – I should have incorporated that. MR. PASSI: Right.

Because there’s going to be occasions... THE COURT: Where they might be home alone. MR. PASSI: Right. THE COURT: I hadn’t even thought of – well actually I did think of that late last night and I remembered that I didn’t have her name and I meant to ask you about it. So what is M.’s name? MR. PASSI: M., surname, A. J. L.: A ◼◼◼◼ . COURTROOM CLERK: A ◼◼◼ ... MR. PASSI: ◼◼◼ ? J. L.: Yeah. THE COURT: Okay. COURTROOM CLERK: And what was the first name, M?

MR. PASSI: M ◼ ◼ ◼ ◼ . THE COURT: Okay, so what we are going to – clause six will be drafted so as to read – and I’ll just make this modification, “Do not be in the company of any females under the age of 17 years with the exception of your sister, M. A., unless in the immediate continuous – hold on let me just – sorry, let me just think it through before I – all we’re going to do is at the end of clause six, we’re going to add and – I’d like another clause, “And except in relation to your sister, M. A.” So essentially it makes clear that that clause doesn’t apply whatsoever to her.

So the second exception to clause six at the end, so she’s exempted. Okay, and we’ll print that and I’ll sign it and we’ll send it down to Probation. I’m sorry for the – sorry about that, Mr. – I’m just – bear with me here. No, I think that does it – do you think it does it, Mr. Passi? Does that capture what we’re getting at? I’m mean does... MR. PASSI: And – and if we could just as far as, “And except,” if we could capitalize that, “Except,” also. I think that’s clear. THE COURT: That’s about it. We’ll make it very clear. MR. PASSI: Right. THE COURT: Okay, thanks, Mr. Passi. MR. PASSI: Thank you, Your Honour.

THE COURT: Thank you, and J., that will be down at Probation Services shortly and you’ll be able to sign it and be on your way. J. L.: Thank you. ...WHEREUPON THIS MATTER WAS COMPLETED FORM 2 C ertificate of Transcript (Subsection 5(2)) Evidence Act I, Kim Fess, certify that this document is a true and accurate transcript, to the best of my skill and ability of the recording of the proceedings in R. v.

L. , in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario , taken from Recording No. 3111-304-20160902-92118 , which has been certified in Form 1. ______________ _______________________________________ (Date) ( Signature of Authorized Person) Kim Fess

ACT ID: 4454479014 1 -855-443-2748 Kfess@transcripts@vptranscription.com