R. v. A.(D.), 2011 ONCJ 748

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto Region Citation: R. v. A.(D.) , 2011 ONCJ 748 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) B. Olesko, ) for the Crown ) — AND — ) ) ) d.a. ) L. Walker, ) for the accused ) ) ) ) HEARD: July 13, October 25, December 6, 2011 feldman J.: [ 1 ] I found D.A., then aged 17, guilty of sexual interference and sexual assault of S.C., a 12 year old female complainant.

I rejected his defence that he had an honest, but mistaken belief the complainant was at least 16 years old and that she consented to intercourse. [ 2 ] The defendant met S.C. for the first time on the street, obtained her phone number and then with one of his friends got together with her. S.C. was naïve, socially curious and reckless. She ended up in D.A.’s bedroom where she reluctantly participated in mutual petting, but was then physically overwhelmed by the accused who had sexual intercourse with her against her will. She suffered pain and bleeding that extended into the next day.

It is undoubted that S.C. experienced emotional and psychological harm but she was unhelpful in discussing it. Her subsequent conduct and common experience permit that inference. [ 3 ] A pre-sentence report [PSR] as well as a psychological report ordered under s. 34 of the Youth Criminal Justice Act [YCJA] and prepared by the Centre for Addiction and Mental Health [CAMH] indicate that D.A. is without remorse and empathy for his victim, is demonstrating traits that point to a developing anti-social personality and is generally at high risk to re-offend, moderately so in

relation to sexual offences. These are disturbing elements to weigh in the sentencing process. The PSR [4] D.A. has not had stable parenting. He was raised by his grandparents in the Congo, but was left there with other familymembers when they moved to Canada in 1998, reuniting with them here at age 12 when he was diagnosed with cancer and treated atSick Children’s Hospital in Toronto. Since then, he has not cooperated in the monitoring of his medical status as recommended by hisdoctors. [5] His biological parents live in England.

He last saw them 3 years ago. [6] D.A. moved out of the house when he was 16 years old and supported himself by fraudulent activity. He said he was“earning too much money to bother with school”. He did not wish to follow his grandparents’ rules and expresses no remorse for hiscriminal activity. [7] The defendant was in a relationship with an older woman for 2 years. He believes he is “too good to listen to people” hisown age. The character of the friends he has chosen is questionable. [8] D.A. reports drinking alcohol almost every day. He believes he has an anger problem.

He has attempted suicide oncewhen in custody. [9] Since being charged with these offences, the defendant has amassed a significant number of additional findings of guilt. Since October 5, 2009, the defendant has been found guilty under the YCJA of Fraud under $5000, Theft under $5000, three counts ofObstruct Peace Officer, two counts of Fail to Comply with a Recognizance, two counts of Fail to Comply with Probation and Fail toAppear. [10] Since November 3, 2011, he has been found guilty as an adult of two counts Fail to Comply with a Recognizance, twocounts of Fail to Comply with Probation and Fail to Appear.

He has served time in custody for the latter offences. [11] D.A. is bound by seven separate probation orders. He has shown little remorse for his victims and considers court and jailan “inconvenience”. He does not respond to community supervision nor is he seemingly deterred by it. [12] Because of the unsettling content of the PSR and the concern D.A. was suffering from disturbed thinking, at the behest ofcounsel, I ordered a s. 34 psychological report. The s. 34 Report [13] On the basis of both clinical observation and psychological testing, the author of the report, Dr.

Lindley Bassarath, aforensic psychiatrist, who interviewed and assessed the young person, confirms some of the conclusions in the PSR. He makes referenceto D.A.’s resistance to rules and his anger when he does not get his way. He reports that D.A. minimizes the impact of the sexual assaultand demonstrates little remorse, blaming the victim for allowing the situation to develop. He observed that the defendant endorsed otherforms of criminal behaviour in which he was involved and expressed no regret for his actions.

D.A. reported being happy when he was“drinking and clubbing”. [14] The psychological test results indicate that D.A. reported more emotional and behavioural problems than are typicallyreported by males aged 18-59, including a high average range of anger, hostility and aggression. In his risk assessment, Dr. Bassarathconcluded from an analysis of the testing data that the young person was at high risk for general reoffending, presents a low to moderatedegree of risk of reoffending sexually in the next 12 months and exhibits an antisocial orientation with others. [15] Dr.

Bassarath noted the numerous charges the defendant has incurred since the subject offence, that he expressed no regretfor their commission and in relation to the victim of the sexual assault exhibited little victim empathy. He is of the view that D.A. seemsto have a significant sense of entitlement and narcissism with an antisocial bent. He expresses the concern that if this irresponsiblelifestyle continues and the entitlement does not abate, the defendant will qualify for a diagnosis of antisocial personality. [16] On a more positive note, however, Dr.

Bassarath pointed out that this measure of risk is dynamic in the sense that some ofthe identified risk can be remediated over time with support services. Should a Custodial Sentence be Imposed? [17] Section 38 (1) of the YCJA directs that a young person be held accountable for an offence through the imposition of justsanctions that have meaningful consequences and that promote the youth’s rehabilitation and reintegration into society. Further, as setout in s. 38(2)©, the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young personfor that offence.

In addition, all available sanctions other than custody that are reasonable in the circumstances should be considered. Ofsignificance, under s. 39(1)(a), a youth justice court shall not commit a young person to custody unless he or she has committed a violentoffence. (

a) The Definition of Violent Offence [18] In R. v. C.D.; R. v. C.D.K., 2005 SCC 78 , [2005] S.C.J. No. 79, at para. 50, the court adopts a narrow harm-basedinterpretation of the term “violent offence” given that the object and scheme of the YCJA was designed, in part, to reduce over-relianceon custodial sentences for young offenders. It is based on the concept of bodily harm that includes both physical and psychological

harm. Bastarache J. expresses the view, at para. 87, that for the purposes of s. 39(1)(a), the term “violent offence” is to be defined as anoffence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. [19] S. 2 of the Criminal Code defines bodily harm as “any hurt or injury to a person that interferes with the health or comfort ofthe person and that is more than merely transient or trifling in nature”. (

b) Was the Sexual Assault a Violent Offence? [20] There can be no doubt that violence is inherent in rape: see R. v. McCraw, (SCC), [1991] S.C.J. No. 69,per Cory J., at para. 28. In fact, Justice Cory described forced sexual intercourse as “grave and serious violence” and said, at para 31,that violence and the threat of serious bodily harm are hallmarks of rape. He also accepted that rape can cause serious bodily harm. TheAlberta Court of Appeal in R. v. Arcand (2010), 2010 ABCA 363 , 264 C.C.C. (3d) 134, adopted the view in McCraw that rapeis

an act of violence that causes the victim substantial harm and is a profoundly serious offence. [21] In this case, a vulnerable pre-teen had her dignity and bodily integrity violated in a coercive manner. She suffered pain andbleeding into the next day. She took medication for disease, feared pregnancy, felt police would blame her and initially wanted to forgetthis traumatic experience, permitting a reasonable inference of psychological harm. In this latter regard, in R. v. Stuckless (1998), (ON CA), 17 C.R. (5th) 330 (Ont.

C.A.), at p. 334, the court recognized that sexual assaults are by their very natureinherently violent and that they can and do have a crippling effect upon the psychological and emotional well-being of victims. [22] The bodily harm apparent in this evidence leads to the conclusion that the offence committed by the young person was aviolent one as contemplated in the authorities and satisfies the requirements of s. 39(1)(

a) as a gateway to incarceration. © Should the Sexual Assault be Designated a Serious Violent Offence [SVO]? [23] Ms. Olesku, for the prosecution, submits that for the purpose of disposition, having regard to the circumstances of theseoffences, the sexual assault should, on a reasonable doubt standard, be designated a Serious Violent Offence [SVO] as set out in s. 42(9). She says a significant, but necessary consequence of this designation for this young offender is rendering unavailable as a disposition adeferred custody and supervision order, referred to in s. 42(2)(p).

This appears to be so as a practical matter as, absent exceptionalcircumstance, an actual custodial sentence will likely be the only realistic sentencing option given the inherent seriousness of an SVO: see R. v. K.C., 2011 ONCA 257, per Simmons J.A., at paras. 25-26. [24] Of significance, as pointed out by my colleague, Clark J. in R. v. P.H., 2004 ONCJ 346 , [2004] O.J. No. 4509(Ont.

C.J.), at para. 12, such a finding is an onerous one in stigmatizing the young person so long as his or her record exists and carriesthe potential for more punitive sanctions for future sentences by removing the offender’s prima facie right to be sentenced as a youthrather than as an adult, as indicated in s. 2 of the YCJA. [25] Section 2(1) of the YCJA defines “serious violent offence” as meaning “an offence in the commission of which a youngperson causes or attempts to cause serious bodily harm”.

While the term “serious bodily harm” is not defined in the YCJA, under s. 2(2),“unless otherwise provided, words and expressions used [in the YCJA] have the same meaning as in the Criminal Code”. [26] In R. v. C.D.; R. v. C.D.K., Bastarache J. was of the view that the Criminal Code meaning of the term “serious bodilyharm” was determined in McCraw and saw no reason why that definition should not also be used for purposes of the definition of seriousviolent offence in the YCJA. [27] More specifically, Bastarache J. said, at para 20: [28] “In R. v.

McCraw…Cory J., writing for a unanimous Court, relied on this definition of “bodily harm”, as well as thedictionary definition of “serious”, to interpret the meaning of “serious bodily harm” for purposes of s. 264.1(1)(

a) of the CriminalCode…Specifically, Cory J. held that “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in asubstantial way with the physical or psychological integrity, health or well-being of the complainant”.

I see no reason why this definitionof “serious bodily harm” should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of “seriousviolent offence” that is found in s. 2(1) of the Act. [29] I view a plain reading of the definition of serious bodily harm in McCraw to contemplate either significant physical orpsychological harm, that is, not necessarily both, to meet the requisite standard for an SVO designation.

I also accept that the court has adiscretion it may exercise in choosing whether or not to apply the designation even where there is prima facie evidence of serious bodilyharm: see R. v. P.H., at para. 27. [30] At a relatively young age, Mr. D.A. has gained experience in sexual relations. He used that experience to groom this veryyoung and vulnerable complainant and manipulated her into his bedroom. He was aggressive in forcing his will on her and inoverpowering her resistance to his ultimate penetration of her. She suffered extended pain and bleeding.

The defendant was indifferentthen and remains unremorseful now. As noted earlier, I draw an inference that the complainant has experienced trauma and bornepsychological harm. [31] The bodily harm here is serious and the impact of these sorry circumstances on the physical and psychological integrity andwell-being of the complainant is significant.

On this evidence, I am satisfied that the prosecution has met its onus in establishing that anSVO designation is warranted. [32] Moreover, the circumstances of the offence and the anti-social inclination of the young offender do not favour the exerciseof my discretion to the contrary. The consequences of D.A.’s forceful sense of entitlement at the time of the offence, the absence ofremorse and insight, his continuing lack of respect for rules and court orders and the further offences lead to that conclusion: see R. v.

K.C. , at paras. 79 and 80 . The designation will be made. [ 33 ] In that event, Ms. Olesku, for the prosecution, submits that the imposition of a custody and supervision order for 12 months, plus one year probation would be a just sanction. Ms. Walker, for the young person, notes 7 days of pre-trial custody and submits that 4 months of custody and supervision would meet the need for accountability and better reflect her client’s rehabilitative and reintegration interests.

Disposition [ 34 ] A balancing of the principles set out in s. 38(1) appears to emphasize proportionality and meaningful consequences that promote rehabilitation and reintegration of young persons. That is a challenge in this case. D.A. is a seemingly intelligent young man with potential disadvantaged by an unstable family life and a difficult adjustment to Canadian society. At the same time, as indicated earlier, he demonstrates almost no remorse for or understanding of the gravity and impact of his offence, almost blaming the victim for his own predatory and anti-social behaviour.

As well, he exhibits a dishonest nature and an aversion to social rules of conduct. He is at high risk to reoffend. [ 35 ] The seriousness of the offence rests in the exploitation and forceful taking of a vulnerable 12-year old victim in a manner that violated her dignity, personal privacy and bodily integrity in a substantial way, leaving her and her family to grapple with the emotional fallout. As indicated earlier, it meets the standard for serious violence described in McCraw and required in s. 39(1)(

a) before a custodial sanction may be imposed. [ 36 ] For all these reasons, including the gravity of the offence, the lack of insight and the anti-social traits disturbingly apparent in the young person’s lifestyle and more recent behaviour, a term of incarceration is necessary. Balancing the relevant factors and giving as much emphasis as possible in the circumstances to D.A.’s rehabilitation and reintegration, the young person will be sentenced to 9 months of custody and supervision to be followed by 12 months of probation on terms to be discussed with counsel. Released: December 6, 2011 Signed: “Justice L. Feldman”