R v PE, 2023 ABCJ 170

In the Alberta Court of Justice Citation: R v PE, 2023 ABCJ 170 Date: 20230725 Docket: 220614374Y1 Registry: Wetaskiwin Between: His Majesty The King Crown - and - P.E. Young Person Restrictions on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way.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. Identification Ban – See the Youth Criminal Justice Act , section 110(1). No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act .

NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Sentencing Judgment of The Honourable Justice D.G. Hancock [ 1 ] PE was charged with one count of sexual assault contrary to

Section 271 of the Criminal Code of Canada arising from an incident involving the Complainant OW, which was alleged to have occurred on or about September 2, 2021. [ 2 ] The incident in question occurred on the Friday of the September long weekend, after what was referenced as “Indian night” at OW’s parents’ cabin. Every year the family invited the neighbors over on one night for Indian food. That evening the parents gathered at a fire in front of the cabin, lakeside. The youth gathered around a fire in the back. The party extended to early morning around 2:00-2:30 am.

[ 3 ] OW initially reported the incident occurred September 27, 2021. On giving her video statement she revised that to September 2. On cross examination she acknowledged that “Indian Night” would have been on the Friday which according to the calendar would have been September 3 rd, and therefore the incident actually occurred in the early hours of September 4. Nothing turns on the question of the date. [ 4 ] OW had retired to the bunkhouse where she and her brother slept before the others left.

Later that morning, after everyone had left, at around 3:00 am the Young Person, texted OW suggesting they meet on the path between their cabins. OW and the Young Person did meet on the path and sexual activity did take place. OW and the Young Person had different versions of the event and differed on the issue of consent. [ 5 ] At trial, after hearing evidence decision was reserved. Process was transferred to Edmonton where all parties reside for the benefit of scheduling and convenience of the parties and the Young Person’s counsel.

Counsel for the Crown consented. [ 6 ] On January 19, 2023 decision was delivered in court and the Young Person was found guilty of the offence charged. Sentence was set for April 20, 2023. A pre-sentence report was ordered and received.

Victim Impact Statements were provided by the Complainant and her mother and were presented by them to the court. [ 7 ] On application by the Young Person sentencing was adjourned to July 13, 2023 to allow him to complete high school and graduate prior to any sentence, as the Crown had indicated an intention to seek custody. [ 8 ] After hearing arguments, the Young Person was sentenced to 24 months probation, with terms essentially as recommended in the pre-sentence report. [ 9 ] At the time of the incident the Young Person was 16 years of age. The Complainant was 15 years of age. Their families were friends.

After a party at the Complainant’s family cottage the Complainant left the group and went to bed. She was contacted by the Young Person later via snapchat and agreed to meet the Young Person on a path between the cottages. The Complainant acknowledged that there had been some consensual “making out” or kissing. The Young Person and the Complainant had different versions of what then happened. It is acknowledged by both that there was oral sex and then vaginal intercourse.

The Complainant did not consent to the activity progressing beyond meeting, perhaps to talk, and then the making out. [ 10 ] After the weekend, the Young Person sent a text to the Complainant advising that he had a video. He also, at later dates, took pictures of the Complainant sleeping, while on a holiday with both families, and sent them to her. [ 11 ] A more detailed version of the facts found is set out in the decision in which the Young Person was found guilty. [ 12 ] The Crown requested the imposition of a custodial sentence of 9 to 12 months followed by probation of 12 to 15 months.

Counsel for the Young Person argued that incarceration was not appropriate and instead proposed that a period of probation would be more appropriate. He did not take issue with the conditions proposed in the pre-sentence report. [ 13 ] Sexual Assault is, by definition, included in the category of “violent offence”. A Violent Offence is defined in Section 2(1) of the Youth Criminal Justice Act ( YCJA ) as one which “includes, as an element, the causing of bodily harm”. Bodily harm is a term which must be interpreted broadly to not only include physical damage or impairment, but also mental and emotional impact.

Within the analysis under section 39(1)(

a) of the YCJA , Lipton J. in R v ESA , 2003 ABPC 86 at para 30 stated: With respect, therefore, I reject defence counsel’s argument that I must have evidence on the record that a victim has suffered psychological harm before I may conclude that an offence is violent. In my opinion, the cases dealing with

section 150, 151, and 271 charges make it clear that with respect to sexual touching and assaults, they are by their very nature inherently violent even where a breach of trust is not present. [ 14 ] There is no doubt in this particular matter that the Complainant has suffered bodily harm. The evidence provided at trial and the Victim Impact Statements both outline significant mental and emotional trauma.

While some evidence was led at trial to suggest that the complainant may have been in a fragile state prior to the incident, it is clear that the incident itself created significant trauma in the Complainant’s life. That trauma was exacerbated by the Young Person’s subsequent action in sending a message about a video of the incident and other incidental contact. Counsel rightly pointed out, at trial, that the video was not the subject of charges – however it is nonetheless an aggravating factor in terms of the impact of the whole event on the Complainant.

Counsel also quite rightly pointed out that there was no actual medical evidence provided with respect to the nature and extent of the mental and emotional impact of the assault on the Complainant. [ 15 ] The door to custody is open. However, the underlying principles set out in the YCJA must be taken into account. The primary objective is not retribution or punishment.

Rather the focus is on accountability through proportionate measures, rehabilitation and reintegration and supporting prevention of crime by addressing the circumstance underlying the offending behaviour. [ 16 ] Counsel referred the court to a number of cases to support their sentence submissions. [ 17 ] R v AW , 2021 ABPC 14 ; AW was charged under s. 151 with sexual interference. AW was 17, contacted RB, who was 13, on social media. They discussed sex, made plans to meet, met, and engaged in intercourse. AW accepted responsibility for the offence, displayed remorse, and acknowledged the harm done to RB.

In determining sentence the judge reviewed aggravating factors – AW knew what he was doing was wrong, the age difference of 4 years creating a power imbalance, “consent” not defacto consent due to RB’s age, no protection used. Mitigating factors included remorse, acknowledgement of harm, AW’s childhood experiences involving emotional and physical abuse and a recent sexual assault against him, no prior record, cooperation with authorities, compliance with release conditions, support from father, and willingness to attend for counselling among others.

The Crown requested a sentence of 9 to 12 months custody followed by 15 to 18 months of probation. Defence advocated for 15 to 18 months probation. The Court imposed a sentence of 24 months probation.

[ 18 ] R v JK , 2022 ABPC 84 speaks to the question of custody in a youth sexual assault. JK was charged under

section 151 with sexual interference involving a sister 3 ½ years younger, which took place over a period of years from when JK was 12 until he was 18. The Crown requested a custodial sentence of 12 months followed by 12 months probation. Defence argued for a probation period of 18 to 24 months. The Court ordered a 24-month term of probation. In arriving at that decision the Court reviewed the question of whether deferred custody was available. Given that Section 42(5) of the YCJA curtails the use of Deferrred Custody in a case of serious bodily harm.

The Court then found that sexual assault constituted serious bodily harm and therefore precluded Deferred Custody. The question then became – does that infer a more onerous sentence. The Court concluded that was not required in all circumstances and that “exceptional circumstances” could lead to a less onerous sentence. Finding that JK was less morally culpable due to his specific upbringing, his cognitive limitations and the

section 34 report opinion that his sexual offending was less predatory and more relating to lack of boundaries provided those exceptional circumstances. [ 19 ] In R v KMF , 2021 ABPC 300 the Court imposed a sentence of 2 years probation including a condition of 240 hours of community service. In that situation the charges were conspiracy to commit and attempting to commit sexual assault. A scheme was planned to attract the complainant to a residence where she would be sexually assaulted. The plan was put into effect but was not likely to be successful and in fact did not succeed.

The Court determined there was some degree of remorse and there were “collateral community consequences”, family support and a low risk to reoffend. The sexual assault did not succeed – but the plan was without question an intention to engage in sexual intercourse without the consent of the victim as part of a game to determine how long he could continue after she removed her consent. [ 20 ] In R v BRS , 2020 ABCA 29 the Court of Appeal overturned a sentence of 2 years probation, finding that: “This was a major sexual assault with evidence of planning and serious consequences.

A fit and proper sentence in these circumstances would have been a custody and supervision order of 15 months”. The Court imposed a sentence of 6 months Custody and Supervision taking into account that 9 months of the probation order had already been served. That case is perhaps the most analogous to the case at bar in that it involved the complainant being invited to the home of BRS for lunch and then being assaulted.

The appeal court reviewed the information provided in the Victim Impact Statement and found that it could accept that information in coming to a determination that the complainant suffered severe psychological harm. It found that the trial judge had not appreciated the significance of the harm or taken it into account as an aggravating factor. [ 21 ] R v Friesen , 2020 SCC 9 was also referred to.

It is very useful in its review of general principles, however the facts in that case were a significant departure from the matter at hand and involved horrendous violation of a very young child so provides little guidance in sentencing in this matter. [ 22 ] The Court also reviewed his earlier decisions in comparable matters and cases reviewed in the context of those decisions. [ 23 ] In R v JR , 2016 ABPC 265 at para 13 , Dalton J. discussed the range of fit sentences for sexual offences committed by young persons: While custody may be available for offences of this nature, it would be unusual for a young person in these courts to receive a sentence other than a community-based disposition.

Probation is typically ordered, as the focus for sexual offenders is primarily a therapeutic one which will assist in rehabilitation. Addressing the root causes of the offending behaviour through counselling, for example, is generally seen to better protect the public in the long term. ... [ 24 ] After surveying a number of cases across jurisdictions, Dalton J., at para 20, concluded: It is clear that it is not uncommon for a young person to receive a Conditional Discharge for a sexual assault, and other forms of assault, even when the circumstances are more serious.

However, in none of the cases submitted or reviewed was a Reprimand imposed as a sentence for a sexual assault. That is not, of course, determinative. Sentencing must be an individualized exercise as each offender is unique and each set of circumstances will be different. [ 25 ] As noted, sentencing is an individualized exercise.

The Court must determine what is the most appropriate result in this particular matter, recognizing that the impact of the Young Person’s actions will have lasting negative effects on the Complainant’s life, but understanding that our primary focus must be on the interest of society, having a Young Person held accountable for their actions, while focussing on the longer term big picture of reintegrating that young person into society and community in a manner which deters future inappropriate or criminal behaviour and promotes a positive participation and contribution to society.

The primary focus is not on punishment or general deterrence. [ 26 ] Applied to the situation before us some of the considerations would almost seem to have an unfair distinction from how other Young Persons might be treated in the same circumstance. PE obviously has strong family support. His family attended trial, decision and both sentence hearings. They were in court for the final sentence. Not every Young Person enjoys that support from family.

While in some ways it is that “privilege” which may have set the stage for the trouble he is now in, and it might seem unfair that such support should be taken into account in a positive way in determining sentence – if we keep the objective in mind – it is that very same support which will help him overcome these challenges and climb back out.

We want PE to realize that what he did was wrong and that he has to take responsibility for his actions – but we also want him to move forward, stay out of trouble and return to being a productive citizen. [ 27 ] At the other end of the spectrum, the court is asked to consider incarceration. Again we have to look at the objective. How is incarceration going to assist? It may provide PE an opportunity to realize the gravity of his offence and reflect on his actions – but it is not going to assist with any other objective.

His education, though it may continue in custody – would not be the same experience or opportunity he will have in the community. It is possible that counselling may be available – but that can be accessed in the community under a probation order and is likely to be approached in a more positive manner outside rather than in custody. Certainly the opportunity for ongoing community connection to counselling will be there. It is hard to determine a scenario where custody would be anything more than punishment in this case.

While such punishment may be warranted it is clearly not the highest value outcome. [ 28 ] One of the concerns which needs to be addressed is the question of deterrence. There is a significant concern in our society about sexual assault and the historical treatment of women and girls. Cultural attitudes have created unfortunate norms and beliefs which

must be changed. It is not acceptable to treat another person as a sexual object to be used. Consent is an absolute must. Consent is not something which can be assumed – it must be positively communicated. The cases of sexual assault involving the molestation of children, power imbalance, extreme violence and aggression, the ones most people think of when they hear the term sexual assault, have always been subject to society’s approbation. That is not the case at hand.

What we have with PE is something we see too often in our courts – young people of relatively the same age, at a point in their lives where they are exploring their sexuality, but who do not have the respect for others to not invade their personal space and dignity. Young people need to understand that we need to treat each other with dignity and respect, that it is not okay to interfere with another person or touch another person, physically or sexually, without their express permission. That there are and always will be consequences.

The YCJA is based upon a premise that young people are still developing and are not fully equipped to always make the most responsible decisions. In some ways it should be possible, not just to ask that parents be there to support their youth, but that they stand up with their child to take some of the responsibility. If the youth does not have the full capacity to make appropriate decisions, where is the adult supervision?

I understand we live in a society where many young people do not have that kind of family support – but we see far too many cases like this one, where there are families, there are parents, there is privilege. [ 29 ] We have to balance the desire to send the community a message – general deterrence with the need to ensure a young person is not destroyed by their immature actions. Thus – we do not publish the names of young offenders. We ensure that their record of offences does not follow them into adulthood.

And we focus sentences more towards rehabilitation and reintegration than on punishment and denunciation. [ 30 ] This was a serious offence. The Complainant suffered serious harm. She may or may not have been in a somewhat fragile or exposed condition prior to the sexual assault but there can be no question that the assault caused serious harm.

That harm was aggravated by the actions of the Young Person, perhaps more thoughtlessly than maliciously, in his contact after the assault in sharing that he had a video and in taking and sending pictures. [ 31 ] The Crown suggests that the failure of the Young Person to take responsibility for his actions, to admit he was wrong, failing to apologize for his actions, should be taken into account as an aggravating factor.

The pre-sentence report confirms that PE “relayed that he was found guilty at trial, and maintains his innocence.” One of the challenges, of course, is that the process is not necessarily complete. In the event that his counsel is advising that he consider appeal – an admission of guilt and responsibility would not be advisable. Release conditions would have precluded any contact with the Complainant and therefore not afforded an opportunity for apology.

While I agree that accepting responsibility and making amends is a mitigating factor, I am reluctant to consider the maintenance of innocence in the face of having been found guilty an aggravating factor. [ 32 ] While it would seem that the Young Person may be “getting off easy”, I think it important to realize that the process itself can be and is a part of the sanction. PE made the very responsible choice to advise the head of the basketball program in which he coached, of the fact of his charge.

The result, undoubtedly anticipated, was that he was no longer able to contribute in that way, losing both a valuable volunteer and learning experience. While his record is not public – he may face questions from future employers about why he left that role and he will have to figure out how to respond. This will have lingering impact. [ 33 ] Notwithstanding that the Young Person appears to have strong family support, and received many character references, his actions have impacted his family and their relationships. This is a heavy responsibility for him to bear.

While the many references suggest that he has good character and treats people with dignity and respect – this incident puts those characterizations into question. He may well, and he may have retained that good will – but it has cost him. [ 34 ] These are not small consequences. [ 35 ] In the result it is my decision that a period of custody is not desirable nor required in this matter.

The Young Person will serve a period of 24 months on probation with the following terms: In addition to any mandatory terms: • You must report to a probation officer within three business days, and thereafter as directed by the Probation Officer. • You must live at a place approved by the Probation Officer in writing. • You must immediately report to your Probation Officer any change in your address, school, work, or telephone number. • You must make reasonable efforts to be enrolled in and attend a school or an alternative educational facility as directed by your Probation Officer.

The school facility must provide a record of attendance to your Probation Officer when requested.

Your Probation Officer is authorized to provide a copy of this Order to your school facility. • If you are not attending school or alternate educational facility you must make reasonable efforts to find and maintain employment and inform your Probation Officer of your efforts. • You must attend and actively participate in any assessment, counselling, and/or treatment directed by your Probation Officer for sexual offending behaviour, including the Alberta Health Services StartingPoint Program, if assessed by that program to be a suitable participant, or an equivalent program. • You must not have contact or communication with the Complainant, or any other person named in writing by your Parole Officer, except for incidental contact at an educational facility.

It is your obligation to avoid contact or leave an area in the event the Complainant or other named person is there. [ 36 ] A conviction under this charge results in mandatory DNA and Weapons Prohibition Orders. You are required to report on or before July 20, 2023 to the Criminal History Unit of the Edmonton City Police Service at 9620 – 103A Avenue for the taking of bodily substances by sterile lancet for Forensic DNA Analysis. You are prohibited from owning firearms, knives or weapons of any kind for a

period of two years. [ 37 ] The cell phone seized in the course of the investigation shall be returned to the Young Person, and may be picked up by his father, within 90 days at the Wetaskiwin RCMP detachment. Heard on the 21 st day of December, 2022. Decision delivered on the 19 th day of January, 2023. Sentence heard on the 20 th day of April, 2023 and the 13 th day of July, 2023. Dated at the City of Edmonton, Alberta this 25 th day of July, 2023. D.G. Hancock A Justice of the Alberta Court of Justice Appearances: B. Gough for the Crown G. Johnson for the Accused