) ) HER MAJESTY THE QUEEN ) Laurie Vandendool ) for the Crown - v. - ), 2014 MBPC 63

2014 MBPC 63 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Laurie Vandendool ) for the Crown - and - ) ) N.G. AND G.G. ) Cameron McKay ) for the Accused Accused. ) ) ) ) Judgment Delivered: ) December 3, 2014 RESTRICTION ON PUBLICATION: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act , s. 110(1).

No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person. See the Youth Criminal Justice Act , s. 111(1). SLOUGH, P.J. INTRODUCTION [ 1 ] The bullying and sexual exploitation of children, via social media, represents a new and disturbing phenomena in our society. This decision will deal with the appropriate sentence for twin brothers, N.G. and G.G., who four months short of their 18th birthday, became involved in the cyber bullying and sexual exploitation of a 14-year-old girl.

FACTS [ 2 ] In December 2013, the victim was on Facebook. She started to communicate with an 18-year-old male, Z.M. Z.M. knew the victim was 14 years old. Z.M. and the victim lived in the same community but had never met. Z.M. hinted that he knew where she lived and told her to send him nude photos (digital images) or “he would do something to her”. The victim responded by sending a picture of her exposed breasts to Z.M. In response, Z.M. demanded that unless the victim provided more images he would send the initial image to other people in the community.

She complied, sending Z.M. images of her vagina and breasts. [ 3 ] At this point, Z.M. told the accused N.G. and G.G. about the victim. Both accused knew that Z.M. obtained the initial images by coercion and were aware of the victim’s age. Using various forms of social media, they started to communicate with the victim. The communication was intense and relentless, occurring day and night. Subsequent police investigation revealed thousands of lines of text communication between both accused and the victim over a 5 day period. It is estimated by the Crown, that 90% of the communication

dealt with sexual matters. The accused, acting in tandem, alternatively flattered and abused the victim, demanding progressively more explicit images; instructing the victim as to what sexual acts she was to perform and digitally record. The Crown provided examples of the requests made by the accused including: N.G.’s direction that the victim record images of inserting her fingers or a toothbrush into her vagina. N.G.’s request that the victim use more than one finger in her vagina, so that the victim’s hymen would rupture, urging her to “take the pain”.

G.G. made similar requests, but in addition, asked if the victim would engage in sexual acts with him. [These requests were made via social media; the parties never met or spoke in person.] [ 4 ] At one point, the accused sent the victim an image of a penis claiming it belonged to one of them. [ 5 ] The accused promised the victim they would not distribute the images. They broke this promise, distributing explicit images, via social media, to various people within their common community, including people with whom the victim went to school.

The images included her face, as well as her breasts and vagina. [ 6 ] Dramatic changes in the victim’s demeanour and behaviour prompted her parents to investigate. They asked to see her IPod, the victim did not want to turn it over, but they insisted. When they looked at the device they saw some of the messages exchanged between their daughter and the accused. As a result, they contacted the police in early January 2014. Following the initial complaint, the Manitoba R.C.M.P. Integrated Child Exploitation Unit took over the investigation.

An extensive investigation ensued and in May 2014, the R.C.M.P. laid a number of charges including the four charges to which the accused have entered guilty pleas: 1. Sexual Touching contrary to

section 162 of the Criminal Code . 2. Possess Child Pornography contrary to

section 163.2(4) of the Criminal Code . 3. Distribute Child Pornography contrary to

section 163.1(3) of the Criminal Code . 4. Transmit sexually explicit material to a child contrary to s. 171(1) (

b) of the Criminal Code . [ 7 ] Police investigators note that a review of the conversations and images demonstrate that although only one charge was laid with respect to each of the criminal activities of the accused, the facts involve the repeated commission of the offences involving sexual touching, and the possession and distribution of child pornography. [ 8 ] Both accused were arrested in May 2014 and released on a number of conditions. The conditions included not being in possession of a cell phone and a device capable of communicating on the Internet.

In September 2014, the accused were arrested in Yorkton, Saskatchewan on charges of breaching the conditions of their release order, specifically the possession of cell phones. Both accused were sentenced to time in custody (2 days) and a $100 fine. Having turned 18 in April 2014, these were adult convictions. PREVIOUS RECORD [ 9 ] In early December 2013, approximately three weeks prior to the accused committing the offenses currently before the Court, the accused were sentenced for charges of mischief and arson. The most serious charge: arson, involved setting fire to a bridge causing damage in excess of $5000.

The mischief charge involved setting a fire in a garbage container. The accused were placed on 18 months supervised probation with orders that they perform community work and pay restitution. THE YOUTH CRIMINAL JUSTICE ACT : SENTENCING [ 10 ] The accused are to be sentenced pursuant to the Youth Criminal Justice Act. The overarching principle of the Youth Criminal Justice Act is that youth, because of their immaturity, are not subject to the same accountability and moral blameworthiness as would be appropriate in the sentencing of adults.

The Act emphasizes the importance of rehabilitation and reintegration. [ 11 ] Sections 38 and 39 of the Youth Criminal Justice Act set out the principles that must be considered in sentencing young persons. Relevant provisions of those sections are as follows:

Section 38 Section 38 (1) requires that the sentence: • hold a young person accountable; • impose meaningful consequences;

• promote rehabilitation and reintegration into society thereby contributing to the long-term protection of the public. Section 38 (2) requires:

a) that the sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult convicted of the same offense, committed in similar circumstances;

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

i) the sentence must be the least restrictive sentence that is capable of achieving the purposes set out in the act; (ii) the sentence must be the one that is most likely to rehabilitate the young person and reintegrate the young person into society; (iii) the sentence must promote a sense of responsibility in the young person and an acknowledgment of harm done to the victim and the community. Amendments to the Youth Criminal Justice Act , passed in 2012, permit the Court to denounce unlawful conduct and to deter the young person from committing offenses. Section 38 (3) requires that the Court take into account a variety of factors including:

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

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

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

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

Section 39 Youth Criminal Justice Act [ 12 ] One of the stated goals of the Youth Criminal Justice Act is to limit the use of custodial sentences by judges. In order to restrict access to custodial sentences,

Section 39 provides that judges must not impose a custodial sentence unless:

a) the young person has committed a violent offense;

b) the young person has failed to comply with non-custodial sentences;

c) the young person has committed an indictable offense for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt;

d) in exceptional circumstances where the young person has committed an indictable offense, the aggravating circumstances of the offense are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 13 ] Sentences pursuant to the Youth Criminal Justice Act are much shorter than those available under the Criminal Code . The offences the accused are being sentenced on have a maximum sentence, for adults, of ten years.

Section 42 (subsection 14 and 15) of the Youth Criminal Justice Act provides that for offences with an adult maximum of ten years, the longest sentence that can be imposed on a youth is two years. For multiple offences, as there are in this case, the maximum combined duration of all sentences for a youth is three years. In addition, any period of custody, must be followed by a period of community supervision half as long as the period of custody.

For example, if the court imposes a nine month custody and supervision order, the first six months would be spent in custody followed by three months community supervision. [ 14 ] These are the principles I must consider and balance in determining the appropriate sentence for the each of the accused. ANALYSIS

THE PRE-SENTENCE REPORTS [ 15 ] The pre-sentence reports, prepared by different probation officers, demonstrate that to a great extent, no meaningful distinction can be made between the two accused. [ 16 ] As previously indicated, at the time of the commission of these offenses the accused had very recently been placed on probation for serious offenses. Both accused completed the community work and paid the nominal restitution ordered by the court.

However, the authors of the reports advise that neither accused engaged in the programming provided by probation services. [ 17 ] In terms of education, both N.G. and G.G. completed grade twelve, notwithstanding the fact they are both described as being border line in terms of their intellectual functioning. [ 18 ] Neither accused has ever held a regular job. [ 19 ] Both accused have been diagnosed with Attention Deficit and Hyperactivity Disorder but both refuse to take their medication. Nor did they follow up on treatment offered by regional mental health counselling.

Both accused express remorse, however, the probation officers describe the remorse as been rather limited: • N.G. indicated that at the time he and his brother were victimizing the complainant “it was fun, but now feels it was stupid”. • G.G. acknowledges that what they did was wrong, but in the probation officer’s estimation, displays little remorse. That being said, both accused were cooperative with the police when interviewed by investigators and entered guilty pleas on their first appearance in court.

The guilty pleas spared the victim of the distress of having to relive these incidents and being subject to cross- examination. [ 20 ] Probation services prepared risk assessments with respect to both of the accused. The results were identical: each accused was assessed as being a high risk to reoffend. Because of the nature of these charges the accused were also assessed in terms of the likelihood of committing another sexual offense. N.G.’s results determined that roughly 74% of sexual offenders scored lower than N.G.

Offenders with the same score as N.G., sexually reoffend at the rate of 9% in five years; while the rate for violent recidivism, including sexual offending, over five years, is on average, 22%. G.G. was also found to be at high risk to reoffend with identical results in terms of the sexual and violent offender testing. IMPACT ON THE VICTIM [ 21 ] The 14-year-old victim did not file a victim impact statement. Rather, her mother filed a statement on behalf of the victim and her family.

The mother indicated that at the time these offenses were occurring she witnessed profound changes in the victim's behavior: • she stopped eating; • she stopped grooming; • she could not sleep; • overall the victim was transformed from a happy child into someone who was deeply troubled. [ 22 ] Ten months after the commission of these offences, the ongoing impact on the victim, as described by her mother, is as follows: • she feels frightened and no longer feels safe; • she refuses to stay home alone and frequently will not walk home from school; • her mother describes her as shaking, sweating through her clothes, and vomiting. [ 23 ] The victim and her parents continue to be in counseling.

The parent’s relationship has suffered as a result of these events. [ 24 ] Because the accused, using social media, sent images of the victim to the victim’s friends and other members of the community,

this incident is well-known in the small town in which the victim resides. She has been called names at school. The victim's motherstates that the family feels profound violation and have lost their sense of safety and security. THE AVAILABILITY OF CUSTODY [25] My first task in determining the appropriate sentence is to determine whether or not the accused can be sentenced to custodyfor these offenses.

Section 39(

a) of the Youth Criminal Justice Act, stipulates that: custody can be imposed if the young person hascommitted a violent offense. The

Interpretation

section of the Youth Criminal Justice Act defines violent offence as an offence thatinvolves causing bodily harm. [26] In R. v. McCraw (SCC), [1991] 3 S.C.R. 72, at paragraph 22, Cory, J. concludes that serious bodily harmencompasses psychological harm. He states that: “so long as the psychological harm substantially interferes with the health or well-being of the complainant, it properly comes within thescope of the phrase “serious bodily harm”.

There can be no doubt psychological harm may often be more pervasive and permanent in itseffect than any physical harm.” This passage from McCraw (supra) was adopted by the Supreme Court of Canada in R. v. C.D.; R. v. C.D.K. 2005 SCC 78 ,[2005] 3 S.C.R. 668, where at paragraph 20, the Supreme Court states: “that there is no reason why this definition of “serious bodily harm” should not also be used for the purposes of the Youth CriminalJustice Act...” [27] In my opinion, the crimes committed by N.G. and G.G. caused serious psychological harm to the victim and thus are violentoffences.

Accordingly, the accused can be sentenced to custody on these charges. SECTION 38(1) YOUTH CRIMINAL JUSTICE ACT [28] Section 38(1) requires that the sentence imposed hold a young person: “accountable; impose meaningful consequences; and promote rehabilitation and reintegration into society thereby contributing to thelong-term protection of the public”. For the reasons that follow, it is my finding that only the imposition of a significant period of custody, followed by supervision in thecommunity will achieve these objectives.

SECTION 38(2) YOUTH CRIMINAL JUSTICE ACT [29] The Youth Criminal Justice Act directs that the Court must not punish young persons in a more severe manner than an adult insimilar circumstances. In that regard, if the accused were adults, each of these offences is subject to a mandatory minimum sentence ofincarceration, of up to one year in duration. The mandatory minimum sentences for these offenses, involving the violation of thephysical and psychological integrity of children, demonstrate society’s concern regarding offences of this nature.

Clearly, adult accusedin similar circumstances to the accused would be subject to a significant period of incarceration. [30] I must impose a sentence that is proportionate to the seriousness of the offence and the degree of responsibility of theoffenders. In my view, the offences are extremely serious and given the predatory nature of the accused’s conduct their degree ofresponsibility is high. [31] The Youth Criminal Justice Act requires that the Court impose the least restrictive sentence capable of achieving accountability,and the rehabilitation and reintegration of the offender into society.

In that regard, it is important to review the conduct of the accusedwhile in the community. The fact that the accused became involved in these very serious offenses a few weeks after being placed onprobation is of considerable concern. Compounding this concern is the breach by the accused of their release conditions, in particular thefact that they chose to ignore a court order with respect to the possession of cell phones, a condition specifically directed at curbing their

offending behaviour. [ 32 ] While the pre-sentence reports contain some positive aspects, notably that the accused have completed their community work and paid restitution ordered by the court with respect to the arson charge, there is much to suggest that strong measures are going to be required in to promote the rehabilitation and reintegration of the accused into society. Specifically, neither accused has engaged in the programming provided by probation services.

As well, their remorse is described as limited and does not reflect an appreciation of the harm done to the victim. [ 33 ] The risk assessments prepared by probation services are another cause for concern. Both accused are assessed as being at high risk to reoffend. In addition, the risk assessments dealing with their likelihood to commit new sexual or violent offenses indicate that they both are at comparatively high risk to commit further offenses. [ 34 ] Amendments to the Youth Criminal Justice Act in 2012, changed the law with respect to young persons in Canada.

The amendments introduced denunciation and deterrence as being relevant factors in the sentencing of young persons. [ 35 ] Denunciation was defined by the Manitoba Court of Appeal in R. v. C.T. [2005] M.J. 515 at paragraphs 24-25 where Hamilton, J. relying on Supreme Court of Canada decisions, described denunciation as: “a discrete principle of sentencing. “It is the communication of society’s condemnation of the offender's conduct… it is “a symbolic collective statement that the offender's conduct should be punished for encroaching on society’s basic code of values”...

Denunciation is typically reserved for crimes that are particularly offensive or prevalent.” [ 36 ] The accused, having identified a vulnerable victim, subjected her to a relentless attack. The only apparent motivation for this attack being a desire to exploit, demean and humiliate the victim. [ 37 ] The accused’s conduct can only be described as callous and cruel. Over a period of five days they barraged the victim with text messages demanding that she provide them with sexual images.

As described by the Crown, the accused were alternatively flattering and abusive in order to cajole the victim into complying with their wishes. They then distributed the images to other members of the community in which the victim lived. This conduct warrants denunciation. [ 38 ] For offenses of this sort, it is important that other people, who might be tempted to become involved in such predatory activity, be warned that doing so will have significant consequences.

That being said, the provisions of the Youth Criminal Justice Act do not permit the imposition of a more severe sentence, solely for the purpose of deterring others. Rather, deterrence is directed toward the specific offender. In this case, the sentence must bring home to these accused the seriousness of their offending and the consequences of committing violent offences against children.

SECTION 38(3) YOUTH CRIMINAL JUSTICE ACT [ 39 ] I must also consider the relevant criteria set out in s. 38(3) Youth Criminal Justice Act, specifically the degree of participation by the accused in the commission of the offence and the harm done to the victim. [ 40 ] The degree of participation of the accused in the offence was intense, prolonged and only stopped due to the intervention of the victim’s parents. [ 41 ] The intentional and completely foreseeable harm done to the victim by the accused can only be described as devastating and long-lasting.

The impact of the accused’s conduct towards the victim was immediate: she stopped eating, grooming and sleeping, in her mother’s words she went from being happy to being deeply troubled. Those were the short-term impacts. Ten months after being victimized, she is still frightened and demonstrating symptoms of extreme anxiety. The psychological damage to the victim is long-term and profound. Her reputation in the community has been damaged and she has been ridiculed at school. Given the difficulty in controlling the use of images, once they enter cyberspace, the harmful impact on the victim may well be long-term.

CONCLUSION [ 42 ] Counsel for the accused, in his submissions, emphasized the importance of the provisions of the Youth Criminal Justice Act dealing with the reduced moral blameworthiness of young persons in general and, in particular, with respect to N.G. and G.G., due to their low intellectual functioning. I acknowledge these are important considerations; nevertheless, the sentence imposed must serve to protect the public from two individuals, who have committed serious offences and have demonstrated a refusal to comply with treatment and court orders.

I am convinced that their rehabilitation can only be achieved by the imposition of a sentence having a significant custodial component followed by strict supervision in the community. I am imposing, concurrent on all charges, a two year custody and supervision order consisting of sixteen months of secure custody, followed by eight months of community supervision, the two year custody and supervision order to be followed by twelve months of supervised probation.

The conditions of the probation order, as recommended by probation services, are as follows: • Report to a probation officer within three days of your release from custody and thereafter as directed; • To attend and complete programming as directed by probation services; • To complete the intensive support and supervision program; • To seek out, and if available, attend a pre-employment or vocational training program; • Not to access social media or have in your possession any device that provides access to the Internet; • Not to have any contact directly or indirectly with the victim; not to attend her home, school, place of work or her place of worship. ______________________ Slough, P.J.