R v KL, 2023 ABCJ 180

In the Alberta Court of Justice Citation: R v KL, 2023 ABCJ 180 Date: 20230829 Docket: 220281737Y1 Registry: Calgary Between: His Majesty the King Plaintiff - and - KL Defendant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice B.R. Fraser Introduction [ 1 ] The Offender has pled guilty to sexually assaulting his sister. This occurred over a period of 16 months between June 2016 and September 2017 when she was between 6 and 7 years old and the Offender was between 14 and 16 years old. He is now 21 years old. [ 2 ] In the Agreed Statement of Facts, exhibit 1, it’s stated the Offender would bring the victim down to his bedroom in the

basement of their residence. He would place her on the bed, pull down her shorts and touch her vagina and her anus with his hands andpenis after removing his pants. The victim would lay on her back or stomach and he would put his hard penis in her vagina or her anusand he would “hump” her until he ejaculated. When he put his penis in her vagina she told him to stop because it hurts. She thinks hesaid “okay.” He would also take her hand and force her to touch his penis.

This would occur a couple of times a week. [3] Specifically, she stated he touched her vagina with his hand once; touched her anus more than once; put his penis in hervagina once; put his penis in her anus more than once. [4] He told the victim not to tell anyone about the sexual abuse or he would get in trouble. Sentencing Principles in the YCJA [5] The YCJA has its own sentencing regime as opposed to the Criminal Code as set out in sec 42.

Part XXIII of the CriminalCode on sentencing does not apply. [6] The purpose of youth sentencing is to hold the young person accountable through the imposition of just sanctions that havemeaningful consequences, promote his rehabilitation and re-integration into society, contributing to the long-term protection of thepublic. [7] The sentencing principles include parity, proportionality and a degree of responsibility. All available sanctions other thancustody must be considered utilizing the least restrictive that achieves the purpose of sentencing.

However, the sentence objective is todenounce unlawful conduct and deter the offender from committing offences. [8] The Act (sec 38 (3)) sets out a number of factors to be considered including the harm done to the victim and the aggravatingand mitigating circumstances. [9] General deterrence is not a factor in youth sentencing.

Denunciation is not a principle of sentencing young offenders (R v P2006 SCC 27 , [2006] 1 S.C.R. 941 and R v T (C) (2005) 205 CSC (34) 203 (Man CA) Harm Done to the Victim [10] The victim has prepared a Victim Impact Statement, exhibit 2, wherein she states the impact of the offense has caused her toworry about what the people around her would do. It has impacted relationships with friends and family, particularly when someonetries to hug her. She finds she gets distracted, her mind wonders thinking about the past.

She feels she cannot trust people and shecannot get close to people because she is scared about what they would do. She has been taking therapy and counselling to help dealwith what happened. [11] The Supreme Court in R v Friesen, 2020 SCC 9 addressed the appropriate sentence for major sexual assaults against childrenand the proper considerations sentencing courts must take into account. Of course, they were considering the proper sentence for adultoffenders so their comments and directions as to sentence has no application to young offenders where the sentence is governed byYCJA.

However, their comments regarding how sexual violence affects children and that sentencing judges need to properly understandthe profound harm they cause, are applicable to all sexual violence against children and are worth repeating to ensure they are consideredin sentencing. [12] They are as follows: At paragraph 56: ....Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R v McCraw, (SCC), [1991] 3 SCR 72 (SCC), “may often be more pervasive and permanent in its effect than any physical harm”.

At paragraph 75: .....Taking the wrongfulness and harmfulness into account will

ensure that the proportionality principle serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. At paragraph 76: Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities... At paragraph 88: Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. Aggravating Factors 1. This is a major sexual assault. 2. The age of the victim, (between 6 and 7) 3. The Offender was in a position of trust as the Offender was the victim’s older brother. 4.

The sexual assault occurred over a lengthy period of time. 5. There were multiple instances of sexual assault on the victim occurring a couple of times a week over 16 months. Mitigating Factors 1. There was virtually no parental supervision over either the Offender or the victim and the Offender finding himself in charge of looking after his sister. 2. The Offender’s stepfather sharing pornography with the Offender which may have affected him in committing the offence with his sister. 3. His guilty plea. 4.

His expressions of remorse in owning up to what he did to the authorities; this is found in the sec 34 Report and his expressions of remorse to the Court at sentencing. 5. His co-operation with the authorities. 6. The psychological testing all show a global intellectual functioning in the extremely low range. He meets the diagnostic criteria for Intellectual Developmental Disorder (IDD). Positions of the Parties

[ 13 ] Both parties agree a deferred custody and supervision order under sec 42(5) is not available due to the serious bodily harm caused to the victim suffering psychological harm as set out in Friesen previously. If deferred custody is not available because of the seriousness of the harm to the victim, it would seem logical a fit sentence would be a more severe sanction such as actual custody.

This was the view of the Alberta Court of Appeal in R v PKK, 2006 ABCA 1 (Alta CA), a Memorandum of Judgment. [ 14 ] They said at para 17 as follows: “The sentencing reasons noted that the Act bars a deferred custody sentence for a serious violent offence . . . One would think that that was an indication that such a sentence would be too light or inadequate in such cases. Yet the sentencing reasons, without much discussion of that roadblock, simply stepped down to a lower sentence, probation (with community service). We need not decide whether such a step down is always contrary to law.

But the implication of the Act is that often the statutory bar to one type of sentence for a serious violent offence suggests a heavier sentence.

Therefore, such a heavier sentence should be seriously considered and reasons be offered if it is not adopted.” [ 15 ] The Crown’s position, obviously with the above in mind, is that the appropriate and fit sentence is a custodial sentence of one year consisting of 8 months closed custody and 4 months supervision followed by one year of probation. [ 16 ] Defence counsel makes an impassioned submission that an appropriate and fit sentence in these unique circumstances would be 2 years probation.

Defence relies on the existence of unique or exceptional circumstances as considered in R v RW, 2021 ABPC 14 where the court quoted from the Manitoba Queen’s Bench in R v Dzinic, 2018 MBQB 143 , at para 74 and I quote: “A definition of “unique or exceptional circumstances” is not contained in YCJA. However, para 6 in R v Dzinic 2018 MBQB 143 is instructive: “Exceptional circumstances exists where there are multiple mitigating factors of significance.

Those most commonly relied on include strict bail conditions, a guilty plea, cooperation with the authorities, health issues, personal circumstances, family concerns, Gladue considerations, as well as demonstrated rehabilitation. Other factors include the age of the offender, a lack of criminal record, the passage of time since the commission of the offence, as well as the nature of the offence and the need for a deterrent sentence.

The manner of the circumstances underlying the commission of the offence may be a factor as well, if there was something highly unusual or exceptional about it.” [ 17 ] Although the court in RW found many of these circumstances present in that case, the combination of these factors were not sufficient to justify anything other than a custodial sentence. However, the court found two additional unique mitigating factors sufficient to justify a probationary sentence.

They were that the Offender had previously been sexually assaulted himself and secondly, because of his age at the time of sentencing, a custodial sentence would result in him serving custody in an adult facility and be contrary to the purpose and policy objectives of the YCJA. Authorities [ 18 ] A number of other authorities have been provided to the Court by both parties.

I will refer to them briefly as they all refer to sentencing young offenders for various but major sexual assaults on a child. [ 19 ] There is only one Court of Appeal decision, R v BRS, 2020 ABCA 29 , which is a Memorandum of Judgment which is not binding but is of significant guidance. The Offender was convicted of sexually assaulting a fellow high school student by penetrating her vagina against her consent. He was 17 and she was 15. He was sentenced to 2 years probation.

The sentencing judge’s reason was because the Offender was now 20 years old at the time of sentencing and if sentenced to custody, he would have to serve it in an adult facility. The Court of Appeal found the sentencing judge did not appreciate the significance of the psychological harm suffered by the victim or that he did not consider it an aggravating factor. They found a sentence of probation was unfit and failed to hold the Offender accountable.

They found a fit and proper sentence was a custody and supervision order of 15 months. [ 20 ] In R v RM, 2023 ABPC 66 , the Offender was convicted after a trial of a major sexual assault of his two young cousins who were between 5 and 9 and 3 and 7 respectively during the periods of the assaults. The Offender was between 13 and 17. The incidents were ongoing and numerous including vaginal intercourse.

The court found evidence of planning and serious consequences and sentenced him to a period of 24 months custody consisting of 12 months closed, 4 months open and 8 months of supervision. [ 21 ] In R v NAL, 2018 ABPC 211 , the Offender sexually assaulted a female child causing serious injuries. He was just under 18. The facts are not reported. He pled guilty. He was sentenced to one year in custody. His risk of general recidivism was predicted to be low. [ 22 ] In R v JK, 2022 ABPC 84 , the Offender pled guilty to a major sexual interference of his sister over a period of 7 years when she was between 8 and 13.

The interference continued until the Offender moved out of the family home. The victim functions at a low cognitive level. The Offender also was developmentally delayed with a low IQ. He took full responsibility for his sexual behaviour and testing determined his general criminal recidivism to be low or moderate. At the time of sentencing he was 21 and a custodial sentence would be served in an adult facility. The Court found the existence of exceptional circumstances including remorse, cognitive limitations and his mental health made him less morally culpable.

The Court found the offences occurred because of the permissive or neglectful parenting style. The sentence imposed was 2 years probation. [ 23 ] In R v IA , 2022 ONCJ 490 , the Offender was convicted after trial of a major sexual assault on a 16-year-old intoxicated girl with another young offender which included penile penetration of her vagina.

The Court reviewed a number of sexual assault convictions in Ontario courts where a custodial sentence was the result and found the weight of judicial authority in Ontario was that serious sexual assaults by a youth have almost invariably resulted in a custodial sentence. The Court found a probation order alone would not be a proportionate response. The sentence imposed was 150 days of open custody followed by 75 days of supervision

followed by one year probation. [ 24 ] In R v PE , 2023 ABCJ 170 , the Offender was convicted after trial of a major sexual assault on a 15-year-old girl. The Offender was 16. The sexual assault consisted of non-consensual vaginal intercourse. The Court reviewed a series of 5 sentencings, 3 of which I have already reviewed, where the sentence for a major sexual assault was a period of probation with the exception of the Court of Appeal case of BRS . In one case, R v JR, 2016 ABPC 265 , it was stated probation is typically ordered for young sexual offenders.

As a result, the Court imposed a sentence of 24 months probation. Analysis [ 25 ] I respectfully disagree with the comment in JR that probation is the typical sentence for young sexual offenders. Where there is serious bodily harm to the victim which includes psychological harm, particularly with child victims and there is almost always serious psychological harm as the Supreme Court said in Friesen which may often be more pervasive and permanent in its effects than any physical harm, in such circumstances the YCJA makes deferred custody unavailable.

The prevailing authorities suggest that is because in such cases such a sentence would be inadequate. If deferred custody is inadequate, common sense dictates probation would be even more inadequate and not a fit or proper sentence as stated by the Court of Appeal in PKK as quoted previously. [ 26 ] There appears to be one exception to this and that is where there are unique and/or exceptional circumstances as already discussed.

It seems to me the appropriate sentence comes down to examining such circumstances in this case to determine if they are so unique or exceptional to deviate from the norm and impose a lighter sentence of probation. This necessitates an examination of the sec 34 Report prepared by the forensic psychiatrist, exhibit 3. [ 27 ] The Offender clearly had an unfortunate upbringing. His parents separated and his mother found a new partner and he was raised by his mother and stepfather. He has apparently lost contact with his biological father. His stepfather was often angry with him, yelling at him and abusive.

They were often out of work and using drugs. His stepfather was abusive to his mother as well and he observed him abuse and assault her. They often spent time in their bedroom and the Offender was responsible for caring for his younger siblings. The indication is they spent their money on drugs and tattoos rather than supplying their children with sufficient food and sustenance. [ 28 ] His stepfather introduced him to sex by sharing pornographic videos with him when he was young. This led him to begin masturbating. The porn he was shown was “in the family” videos depicting siblings engaged in sexual intercourse.

He continued to view pornography on his own and this no doubt had an effect on him committing the offences on his sister. [ 29 ] Without any parental supervision he skipped school at will, attending maybe once per week. The only work he has done is seasonal such as landscaping. [ 30 ] He has suffered from symptoms of depression and feelings of sadness for many years and has a lack of motivation. It was reported he had immense guilt over what he had done to his sister.

His remorse was repeated to the Court and I have no doubt it was genuine. [ 31 ] When his sister eventually reported the sexual assaults and he was confronted by the authorities, he readily admitted it and was fully cooperative, entering a timely guilty plea. However, the abuse of his sister only ended when the children were apprehended by Child Services and they were placed in different homes. He said he pled guilty so his sister could get justice and he deserved to be punished. [ 32 ] After the children were apprehended, Mr.

O’Connell took in the Offender’s older brother and he subsequently offered to take the Offender in as well. He remained with Mr. O’Connell from age 15 to 20 when both boys moved into a place of their own together. Mr. O’Connell described the Offender as having significant tooth decay requiring thousands of dollars in dental care. He further described him as “feral” when he took him in. He had significant learning disabilities, no sense of routine, structure nor adaptive functioning. The Offender felt his relationship with Mr. O’Connell was “really good” and he felt supported by him.

He gave him clear rules and expectations. No doubt being taken in by Mr. O’Connell was the best thing that ever happened to him. [ 33 ] A battery of psychological testing was administered on the Offender measuring his cognitive and academic abilities. On every test his index scores fell in the extremely low range. He likely meets diagnostic criteria for an Intellectual Developmental Disorder (IDD). [ 34 ] As to a risk assessment the evaluator came to a low rating and an opinion he is unlikely to engage in future sexual violence.

It was perceived motivators of his sexual violence were linked to his deviant pornography usage, a lack of knowledge of consent laws, a lack of insight and guilt, which played a significant role in his offending, his impaired reasoning or cognitive distortions which allowed him to fail to appreciate the consequences entirely. The evaluator was of the opinion his offences were the result of opportunity (inadequate supervision), hypersexuality, exposure to deviant pornography, poor stress and coping and a lack of knowledge regarding consent laws and appropriate sexual behaviours.

This fails to take into account he did know it was wrong as he told the witness not to tell so he would not get into trouble. [ 35 ] The report finds that should he be enrolled in sexual offence-specific treatment, his profile was consistent with those who have positive prognostic indicators. I believe that to mean treatment would likely have positive results. [ 36 ] All of this convinces me that this Offender committed this offence due to unique and exceptional circumstances as described.

In addition, he has no prior involvement in the criminal justice system and if I were to incarcerate him it would be in an adult facility and the influences on him in such a setting would have catastrophic results given his mental and cognitive functioning. [ 37 ] In my view, any young person who sexually assaults a child that qualifies as a major sexual assault causing serious

psychological harm so that deferred custody is not available should receive a custodial sentence. It is only when there are unique and/or exceptional circumstances that a non-custodial sentence should be considered, keeping in mind the impact on the victim. This is one of those situations and I am mindful that I must always consider all alternatives to custody that are available. Given the circumstances here, probation is an available alternative. The best sentence for the Offender and the public is to enroll him in sexual offence-specific treatment which is likely to have positive results and be rehabilitative.

Conclusion [ 38 ] The sentence will be a period of probation for 2 years, with the following conditions as set out in secs 55 and 56 of YCJA: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so; 3. report to Probation forthwith; 4. keep Probation advised of where you are residing at all times; 5. not be in possession of any weapon of any kind except for culinary purposes or work tools; 6. not be in possession of or view pornography of any kind; 7. to participate in sexual offence-specific treatment; 8. participate in any offered treatment for trauma and mood symptoms through Forensic Adolescent Programs; 9. participate in any offered psychiatric consultation through Forensic Adolescent Programs; 10. he is prohibited from being in a position of trust, power or authority over anyone under the age of 16 until he has successfully completed sexual-offence specific treatment; 11. he will have no contact with anyone under the age of 16 unless a responsible adult is present; and 12. take any other treatment, assessment or programs so directed by probation, sign a waiver to provide any information they require and provide to probation proof of completion of any treatment or programs directed to take.

Ancillary Orders 1. Provide a DNA profile. 2. Firearms prohibition for 2 years pursuant to sec 51(1) of the YCJA . [ 39 ] Finally, as recommended in the sec 34 Report, a copy of that report is to be provided to probation and any other person or organization providing treatment to the Offender. Dated at the City of Calgary, Alberta this 29 th day of August, 2023.

B.R. Fraser A Justice of the Alberta Court of Justice Appearances: M. Engley for the Crown S. Dover for the Accused