Her Majesty the Queen - v. -, 2011 SKPC 145

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 145 Date: November 22, 2011 Information: Y310732 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - R.C. Appearing: Ms. Christy Pannell For the Crown Ms.

Joanne Khan For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ SENTENCING JUDGMENT P.S. KOLENICK , J _____________________________________________________________________________

BACKGROUND [ 1 ] The accused has entered pleas of guilty to the following offences, involving sexual assaults against three other youths while living together in foster care at or near Hanley, Saskatchewan: 1. that R.C., a young person within the meaning of the Youth Criminal Justice Act , between the 1 st day of February, A.D. 2010 and the 30 th day of June, A.D. 2010 at the Town of Hanley in the Province of Saskatchewan, did commit a sexual assault on D.P., T.P. and J.

E.- M., contrary to s. 271(1) of the Criminal Code ; 2. that R.C., a young person within the meaning of the Youth Criminal Justice Act , between the 1 st day of February, A.D. 2010 and the 30 th day of June, A.D. 2010 at the Town of Hanley in the Province of Saskatchewan, did commit a sexual assault on J. E.-M., contrary to s. 271(1) of the Criminal Code ; [ 2 ] In the course of these proceedings an Agreed Statement of Facts was prepared and filed, which included the following contents: Agreed Statement of Facts 1. The date of birth of the complainants are: a. J.E.-M. - June 29, 2002 b.

T.P. - November 15, 2002 c. D.P. - June 17, 2000 2. At the time that this occurred R.C. was staying at a therapeutic foster care home and the foster mom there was named C. C. states that on May 26, 2010 in the evening she was reading the younger boys, D., T. and J. stories before their bed time. When she finished reading, R. had just finished his bath and came over to where she was with the boys. The boys began tattling on each other for various things when J. made the comment that R. says “come here” at night time. J. kept saying this and R. kept accusing J. of lying.

C. separated R. from the rest of the boys and went to go talk to them. She spoke with D. and T. first whom made some disclosures to her and then she spoke with J. who also disclosed to her. When C. confronted R. with this, he began crying and essentially confirmed that this had been going on. 3. On May 31, D., T. and J. provided interviews about what had occurred. T., who was in Grade 2 at the time of the interview, stated that he understood the difference between a truth and a lie. The officer went through the body parts diagram and he stated that a penis was called a “private” and that the bum was a “butt”.

When asked why he was at the interview he stated that it was about his privates, and that R. made J. suck his privates, when asked where it was put, he stated in my mouth and that it was 3 to 4 times. He stated that it was not a long time, that stuff, but not pee, came out in his mouth and that he said eww. R. didn’t say anything to him. He stated that one time happened in R.’s room and that R. pulled down R.’s pants and that T. was wearing clothes when it happened.

He describes another time when he was downstairs with J. and C. was upstairs and R. was laying down on the couch and T. knelt in front of him and that J. did it first and then him and that he got the same thing, that wasn’t pee, in his mouth. He also described seeing J. doing this twice. On one occasion he describes saying no and R. saying come here and then he said no again. 4. J. provided an interview, also stating that he was in Grade 2 at the time. He stated that he understood the difference between a truth and a lie and that the penis was called a “private” and he used the word bum to describe the bum.

He stated that R. made them put their mouth on his privates. He said that it happened a few times and the last one was not that long ago and that R. said open it and when he did that R. put his privates in his mouth. When asked what R. wanted him to do, J. said that R. wanted him to suck it and to continue until R. said done. He also stated that R. put his privates in his bum. He took down my pants and he put it in, J. says that he said no. When asked if it hurt he said “yah”. When asked how long it happened, he stated it was a short time and when asked if it happened one time, he stated more.

5. D. provided an interview on the same date and also stated that he knew the difference between a truth and a lie. He stated that it happened after Christmas. He stated that it happened only once in the basement at C.’s house and it occurred in the morning while C. was at the café for coffee. He thought it may have happened in February and probably between 9-10 a.m. because he was watching SpongeBob Square Pants. R. came into the room where D. was and told him to bend down. He stated that R. was standing in front of him on the floor and that both had clothes on, and that R. made D. touch his private part.

He described kneeling in front of R. and then R. told him to open his mouth and close his eyes. D. felt something in his mouth, opened his eyes, pulled his face back and that R. had put his private in D.’s mouth and that nothing came out of it. He said that since that happened, R. had asked for it on other occasions, that R. would tell him to come but that he, D. won’t go with him anymore. EVIDENCE FOR THE CROWN Dyan Zdunick [ 3 ] Ms. Zdunick had prepared the Pre-sentence Report and it was entered as an exhibit herein for the Crown.

For the last sixteen years in her career with Corrections, she has worked solely with the sex offenders. She confirmed as well that, in her report, she had recommended the accused be sentenced to six months deferred custody followed by eighteen months probation. That would provide a total of a twenty-four month sentence, which is the length of disposition which allows the accused to complete the Adolescent Offender Treatment Program. [ 4 ] Despite that recommendation in the Pre-sentence Report, the accused’s mother had initially been resistant to her son being involved in that nature of treatment, as Ms.

Zdunick had noted in the Pre-sentence Report. Another possible sentence could be a term of open custody, in order to address his needs, but she confirmed the recommendation in her testimony of the twenty-four month total sentence, with deferred custody and probation with the stringent conditions contained in the Pre-sentence Report. [ 5 ] In cross-examination Ms. Zdunick advised that she had met with the principal at the school where the accused is attending, in order to establish a safety plan for vulnerable children as potential victims, and the accused had cooperated with it.

As well, the school has been very dedicated to keeping the accused and others safe. [ 6 ] She also indicated that she had not spoken to the accused’s mom very recently because she would not answer Ms.

Zdunick’s calls and is not up-to-date with that input from her. [ 7 ] As well, because the accused has no past criminal record, the recommendation is for deferred custody and probation, rather than a custodial disposition. [ 8 ] Further, the deferred custody disposition would allow it to be reviewed quickly and converted to custody, in the event of any breaches. [ 9 ] She confirmed also, there is no intention by Child and Family Services to take any further judicial proceedings in Family Court, after the twelve month Child Supervision Order expires from July 23, 2010.

The accused’s mother had willingly entered into that order. Brian McDonald [ 10 ] Brian McDonald is a clinical psychologist who works with Child and Youth Services in Saskatoon. He was qualified by consent as an expert in the assessment and treatment of adolescent sexual offenders. In his long career he has completed many sexual offender assessments for youths. In that regard, the Psychological Assessment which he had prepared for the accused on October 27, 2010 was entered as an exhibit for the Crown.

[ 11 ] In general, the conclusions which Mr. McDonald had made in his Psychological Assessment were a reflection of his testimony regarding the diagnosis and prognosis for the accused as a sexual offender. The accused had completed the JESNESS INVENTORY - REVISED, which he felt was a useful tool for the purposes herein, even though it was not intended to be used for a sexual offender, which resulted in some inconsistencies in the responses by the accused.

Despite that, he concluded that the accused displayed a profile of someone into conning, scamming, and being deceptive who will conform to the power structure only on the surface, and revert when not being supervised. [ 12 ] Mr. McDonald also indicated that the accused has a long history of being victimized sexually in addition to being a sexual predator himself, including the grooming of a victim when he was six years old. He is regarded as being at a high risk to re-offend, having experienced sexualization at an early age. He has no empathy for those who have been victimized by sexual actions.

Further, he has offended on multiple victims both male and female at various locations. As noted earlier, there is some history of grooming his victims. There is a risk that if not properly treated, he will become addicted to sexual conduct, and continue as an adult. He has been involved in a broad range of deviant behaviour. He had one victim who refused, but the abuse had continued regardless. [ 13 ] There are some factors which reduce the risk of re-offending, including his willingness to discuss the incidents and that he has used trickery rather than violence. However, it is Mr.

McDonald’s opinion that the accused remains a very high risk for sexual offending, which can best be addressed by placement in an in-patient treatment centre, such as Ranch Ehrlo in Regina. If the accused’s family is not prepared to consent to a placement at Ranch Ehrlo, another option would be him being placed in custody where he can be better supervised and treated for sexual issues that can occur. If he is being treated as an out-patient, he may well fail if placed in the community, rather than in a facility with hands-on supervision, and specific treatment.

Any of the in-patient centres will foster family relationships as a key part of the treatment. [ 14 ] In cross-examination Mr. McDonald agreed that although the JESNESS INVENTORY cannot be used for sexual offences per se , it does predict how the accused would handle things like supervision and temptation, so it has some value for current purposes. As well, the result is not the tester’s opinion but an objective analysis. It also has factors such as scales for lying and inconsistencies, but the accused having missed a couple of items did not affect the validity of the overall result.

The concern continues that he will conform superficially until the supervision is relaxed and his behaviour will change. As well there is no indication that he has any concern for victimization. [ 15 ] Mr. McDonald also indicated that the accused had said nothing to his supervisor for about a year in regard to some of the alleged sexual activity, and hid what had happened. Therefore the accused had failed in out-patient treatment before and there was too great a risk he would fail again. If he was placed at Ranch Ehrlo, he would be supervised for almost twenty-four hours a day.

If he was located as an in-patient, all of them attempt to foster the relationship with family because the accused and his mother are close. There is too great a risk of re-offending if placed as an out-patient in the community. If he is placed as an in-patient, he will be carefully monitored and controlled by experienced professionals. The twenty-four month program is not as intense treatment as a residential placement, nor as safe. DEFENCE WITNESS Dr. William Arnold [ 16 ] The only evidence for the defence in these proceedings was Dr.

William Arnold, who was qualified by consent as an expert in children, adult and family psychology. He had also provided letter reports dated November 8, 2010 and January 3, 2011, which were entered as exhibits. He has been a psychologist since 1988 and his qualifications include a PhD in Clinical Psychology. [ 17 ] In general Dr. Arnold confirmed the contents of his letter, dated November 8, 2010. He had first met with the accused’s mother in December 2007, regarding the accused’s sexual assault by his older brother.

He provided parenting and family therapy to the accused’s mom for the sexual abuse of her children. She wanted the family to be functioning. Dr. Arnold had also met with the accused’s older brother, who had sexually abused the accused. The older brother had spent two years in a program, and Dr. Arnold worked with him further to aid in relapse prevention. Thereafter, he worked with the accused and his mother to help the children be together again, under supervision, for roughly two years. He still sees the accused and his mom on a regular basis for counselling sessions.

[ 18 ] Dr. Arnold confirmed that he has confidence in the mother’s motivation to the task of safe reintegration of her children. As well, removing the accused from her care might impact on the risk. He is still highly dependent upon her and she exerts great influence upon his behaviour. In his view, the accused would be best served by involvement in the Adolescent Sexual Offender Treatment Program, with the personal and family treatment that has occurred for the past few years continuing as well.

He does not regard the accused’s treatment as being well-served by an in-patient facility placement, nor in a custodial setting. [ 19 ] In regard to the letter of January 3, 2011, once again Dr. Arnold confirmed the general contents of same. He had caused further testing of the accused to be completed, which had not been done by Brian McDonald in his encounter with the accused. These additional tests were intended to confirm the accused’s IQ and aspects of his cognitive development.

The testing which Brian McDonald gave requires reading and the accused should have been tested. [ 20 ] In any event, the accused’s IQ is 81, in the low average range. His verbal comprehension is borderline, and his non- verbal/perceptual is low average. His memory is low average and his speed processing, average. As such there is a bit of delay in his cognitive ability. Although he is in Grade 7, reading is at a Grade 5 level and spelling at Grade 4.

In that regard as well, his reading was in the 53 percentile and comprehension was low. [ 21 ] In regard to the use of the JESNESS INVENTORY by Brian McDonald, he advised that the results may not be valid if reading is a problem. The accused may not have understood what he was reading. He needed a comprehension check, or the use of other tests such as the MMPI. Mr. McDonald had conceded there were some inconsistencies but attempted to rely on it. He was also of the view that there is a specific test for adolescent sex offenders, which was not used here.

Further, he confirmed that if the accused was suffering from ADHD as indicated by Dr. Quinn in his report, that could result in some development problems for the accused. [ 22 ] In cross-examination Dr. Arnold advised that he has past experience using the JESNESS INVENTORY roughly three hundred times, but not since the mid-nineties when better programs became available. As such, it is no longer in popular usage. One needs to ensure the questions can be read and needs a reading ability at the Grade 6 level. It is not a very sophisticated test, and is not intended to measure risk.

He was surprised to see that assessment in this situation, but perhaps Mr. McDonald has his reasons. THE PRE-SENTENCE REPORT [ 23 ] The Pre-sentence Report includes the following pertinent contents starting at page 3: . . . CURRENT CIRCUMSTANCES AND CRIMINAL HISTORY

a) Current Family/Social Circumstances: [RC] is the only child born to [EB] and [JC]. They were married for five years. [R] has 3 older half maternal siblings, [JB] who is in a specialized care as he has Charge Syndrome, is deaf, autistic and suffers multiple disabilities. He is a permanent ward of the Ministry of Social Services. [R] has two older siblings, [EB] Jr. who resides with his biological father and [JB] who is reported to be residing in Swift Current. [JC] is reported to have a history of domestic violence, physical abuse, drug and alcohol use while he was in a relationship with [EB].

According to Family Services Worker Laura Neiser, [JC] has been able to address his addiction and behavioural issues and is now living a healthy life style. [JC] is reported to be remarried and resides at Onion Lake.

[EB] has an extensive history dating back to 1987 with the Ministry of Social Services, Child protection agencies. [E] at that time was reported to be using drugs and alcohol and was thought to be in a domestically violent relationship. The Ministry of Social Services issued a long term ward ship on [J] on April 1990 as well as a 3 month ward ship for [J]. In June 24, 1998 until January 8, 1999 the MSS and [EB] entered in to a parental service agreement that required [E] not to use drugs or alcohol and to relocate to a residence where she was not exposed to domestic violence.

Her second born son, [J] was charged for sexually assaulting [R] and was to have no unsupervised contact with [R] or any child. [E] was able to turn her life around and quit using drugs and alcohol, and found sobriety in the church. [R] was placed in care in 1998 and again in 2006 when he was apprehended. The Ministry of Social Services was prepared to apply for a long term care order on [R] in May 2010, but the Ministry of Social Services lawyer and [E] ’ s lawyer were able to agree on a 12 month child supervision order. This order was granted in the Court of Queens Bench Family Law Division on July 23, 2010.

The court order stipulated 11 conditions that will be addressed latter in this report. [R] is currently residing with his Mother [EB], attending counseling with Lana Phillips and attending St. Maria-Goretti elementary school in Saskatoon.

b) Current Criminal Involvement: [RC] is currently appearing before the Youth Court on two counts of

Section 271 CCC – Sexual Assault against three separate victims (ages 7, 8 and 10 years at the time of the assaults). According to RCMP police report occurrence No. 2010-591065; [R] was residing at the [C] foster home in Hanley, Sask. when the offences occurred. Three other boys were residing in the residence at the time. [R] made one of the boys perform oral sex on him on multiple occasions and two other boys on one noted occasion in February and possibly again during April or May 2010.

According to MSS file information, [R] was 11 years old when he began offending against the victims and that the assault occurred over a one year duration up until May 2010 when they were reported. [R] did not respond to the writer in regards to his involvement in the current offence.

He looked towards his mother to answer for him. [E] stated, “ [R] wants the Judge to know that [R] is sorry. ” She said that she wants to ensure that the three boys get counseling help as well. [E] reported that she knows what [R] went through in the past in regards to his own victimization and now these boys are going through the same thing. [E] also is concerned if the foster parent continues to foster these children and if they are left alone, that they may now be hurting each other. The Adolescent Sexual Offender Risk Assessment will directly address [R] thoughts and opinions in regards to the offences.

c) Offence History: This is [RC] first appearance before the Youth Court. He is currently 12 years of age and is before the courts on two count of sexual assault against three separate victims.

d) Impact on the Victim and Community: Given the age of the victims and the nature of the offences the victims were not interviewed. Sarah Abbs, Ministry of Social Services, Social Worker for all three of the victims reported that [T] (victim #1) is doing well in the school and in the community and at school. He has regular contact with his school counselor and has not displayed any negative behaviour in regards to his victimization. [D] (victim#2) is also having regular contact with the school counselor and is also seeing Leah Hardy, Psychologist once a month to address his victimization.

Sarah Abbs, informed that he is doing well in counseling. Ms. Abbs informed that [J] (victim#3) had experienced the most trauma symptoms. He displayed some noted inappropriate sexual behaviour and as well had some incontinence following the assaults. He is currently having contact with the school counselor and is attending therapy with Dr. Ruthann Bell bi-weekly. It is reported that he has made significant progress in therapy to date. Ms. Abbs informed that all three boys have a very loving and supportive relationship with the foster parent and that they are involved in prosocial community activities.

[E] informed that she currently maintains constant supervision of [R] and that he will not ever be able to offend again as he will either be at school or under her supervision. . . . [ 24 ] Further, commencing at page 7: Major Risk Concerns: . . . On May 9, 2003, [J] (partial FAS), [R] older brother was sentenced to 24 months supervised probation and treatment in regards to one charge of sexual assault against [R]. He was placed in therapeutic foster care and was to have no unsupervised contact with any child, including [R].

It was reported to Child Protection Services, that it was believed that [J] returned to reside with [EB] after the expiration of his probation order. [EB] stated that [J] was not living with her, but he was using her address to retrieve his mail. In March 2006, [R] was reported to be displaying inappropriate sexualized behaviour at school. . . . In May 2008, the Child Protection order expired on [R] and he was returned to [E] care.

According to MSS file information, on January 23, 2009, [R] disclosed to a teacher that his older brother [J], was again residing in the home with him and his mother. [R] was again apprehended by MSS on January 30, 2009, given concerns that he “ was at risk for exposure to harmful interaction by others for sexual purposes and a lack of parental supervision ” . File information reported that [Ms.

B] often felt torn between protecting the needs of both her children and felt obligated to help [J] as he often had no place to stay. [E] fought MSS for custody of [R] and in Court of Queens Bench Family Law Division on July 23, 2010, a 12 month child supervision order was granted between [EB] and the Minister of Social Services.

The court order stipulated the following conditions: The child,[RC], January 21, 1998, be returned to the custody of his mother [EB], and supervised by the Minister of Social Services, for a period of 1 year, with the following conditions: 1) The child shall be gradually transitioned into the full time care of is mother, [EB], for a period of several weeks, with relocation being complete on or before July 31, 2010; 2) [EB] shall ensure the child, [R], has his own bedroom and sleeps alone; 3) That [EB] shall maintain frequent and ongoing communication with Ministry of Social Services personnel throughout the period of this order, and discuss any areas of mutual concern which might arise.

Further, [EB] shall follow the reasonable and lawful directions of Ministry personnel;

4) That counseling and psychological services continue to be provided for the child, [R], his mother, and any other family members as required, with such services being provided by Lana Phillips, Dr. Jim Arnold, and /or any other mutually agreeable professional; 5) That the child ’ s brother, [JB], shall not reside in [EB] residence, nor be in or around the residence at any time. Thus, [J] shall have no contact with the child, [R]. This provision is subject to review upon the recommendation of Dr.

Arnold or Lana Phillips or another professional upon whose opinion [EB] and Ministry of Social Services officials shall rely; 6) That [RC] shall be supervised, to the greatest extent possible, by [EB] or her designate at all times, and that [EB]will ensure officials at [R] school are aware of his circumstances such that appropriate supervision measures can be taken at school. Further, [R] must not be left alone with children under the age of 12 at any time; 7) That [EB] shall ensure [R] is supervised at all times when she is not present, by retaining a caregiver.

The cost for such caregiver may be provided by the Ministry of Social Services; 8) Ministry of Social Services shall provide funding for respite care for [R] on a periodic basis, particulars of which shall be negotiated between [EB] and Ministry personnel; 9) That Ministry of Social Services shall provide a Parent Aid to work with [EB] and [R], in particular, with such Parent Aid providing education on human sexuality and any other matters which might arise; 10) Ministry of Social Services shall refer the child to the Big Brothers or similar organization so that he is provided a positive male role model; 11) The child ’ s father, [JC] access with [R] has not been specified or determined, and is an issue which remains open for Mr. [C] to pursue. [R] remains in the care of his mother and [E] is expected to maintain the conditions of the above agreement and actively work with the MSS. [E] informed that she currently maintains constant supervision of [R].

She also informed that she can not be employed as she has to be available to the school at all times in case she is needed for any reason. [E] said that she is cooperating with the school and trying to work with the Ministry of Social Services. Social Worker, Ms. Neiser, reported to the writer that [R] wants to reside with his mother and that the two of them get along well and are very close. . . . [ 25 ] Further, at page 9: . . .

Antisocial Pattern - [R] show as having an anti-social pattern given that he has participated in a previous assessment for antisocial behaviour and is assessed at high risk to re-offend sexually. [R] has shown early and diverse antisocial behaviour, as there is documented information that he has a history of displaying inappropriate sexualized behaviour in both school records and in MSS files. [R] was 12 years old when he was charged with the current offences.

[ 26 ] Further, starting at page 11: . . . Procriminal Attitude and Orientation – [R] was able to identify that committing crimes is not acceptable and that rules are put in place in society for people to follow.

He reported that criminal behaviour makes victims mad and that consequences are necessary for people who break the law. [R] was able to verbalize that he understands what a court order is and the requirements expected of following the courts expectations. [E] informed that [R] feels that he was treated fairly by the police but was unprepared when the police came to the house and charged him with the current offence without any prior consultation. [E] stated that [R] was not interviewed formally by the police authorities in regards to these offences. In consultation with Mr.

McDonald (psychologist) whom interviewed [R] informed that [R] does realize that sexually offending against children is against the law, Mr. McDonald reported that [R] views it as a behaviour that gives him pleasure and that he enjoys the sexual behaviour. Mr. McDonald also informed that [R] does not blame his victims and that he does take accountability for his current offences.

He also informed that [R] does appear to conform to the basic rules given to him by his social workers and teachers, but as soon as he is not supervised directly he may bend or break the rules to attain his own personal satisfaction or goals. Mr. McDonald stated that [R] will conform to the rules given to him while he ’ s under supervision, he does not conform to societies basic rules and expectations towards sexual behaviour . . . .

Additional Concerns/Client Issues : According to MSS file information, Counselor, Lana Phillips raised concerns that [R] has problems with inattentiveness and impulsivity and this may be attributed to possible undiagnosed fetal alcohol effect/exposure, ADHD. [E] informed that [R] is currently awaiting testing for these issues. . . . Ms. Phillips report also indicated that [R] has difficulty with the expression of anger. As a result of his long term victimization, he is hypersexual and sexually stimulated by printed materials and when unable to deal with negative emotion, he acts out sexually.

She reported that his triggers for acting out sexually were social isolation from peers, perceived rejection by friends, feeling unsafe, having a lack of supervision and a lack of appropriate structure in his day-to day life environment and feelings of anger and resentment. She further stated that [R] anger is sometimes sexualized and expressed in acting out behaviours such as wearing inappropriate clothing, exposure, masturbation, and sexual comments to others.

It is also of concerns that it is noted in MSS file information that [R] is sexually stimulated to violent media and video games and has gravitated towards such stimuli when frustrated. . . . It is also of concern that [EB] has a history of blaming others ( MSS, CPSP, social workers, teachers, foster parents) for [R] inappropriate sexualized behaviour, thus minimizing the behaviour and in essence supporting that [R] not be held accountable for his actions. It is also of concern that [E] has a lengthy history of non compliance with helping professionals.

In regards to adolescent sexual offender treatment, it is deemed necessary for the parent or guardian to be supportive of the treatment program so that the material learned in treatment can be supported in the youth daily life. [E] had informed the writer that she refuses to allow [R] to participate in the Adolescent Sexual Offender Treatment group therapy program which is a mandatory stage in the treatment process. [E] was informed by

the writer that not allowing [R] to participate in the court ordered treatment would place her son at greater risk of re-offending. [E] informed the writer that she will continue to fight the courts to ensure that her son does not participate in this treatment. . . .

Conclusions: In regard to risk management, [R] was assessed in the Adolescent Sexual Offender Risk Assessment as High Risk to re-offend, thus he would be supervised at that level of risk although the LSI/SK assessed him at low risk for re-offending for general offences. . . . [ 27 ] Further, starting at page 14: SPECIAL CONSIDERATIONS Emotional Stability [R] is reported to be in good emotional health. [E] stated that he is a very outgoing and social youth who has a high self esteem. Secondary Assessments The Adolescent Sexual Offender Risk Assessment which was prepared by Mr.

Brian McDonald was unable to be reviewed by this writer as it was not yet released. It is respectfully requested that this report and any other reports/letters or update letters regarding [R] be released to this writer as the information will be necessary to ensure that an appropriate community safety plan may be developed in the future. . . . Sentencing Alternatives: Given that Adolescent Sexual Offender Treatment requires a minimum of 24 months in duration to complete the court may consider imposing a probation order pursuant to Section 42(2)(

k) YCJA or a Deferred Custody and Supervision order pursuant to Section 42(5) YCJA. Deferred Custody and Supervision is a sentencing option if the young person is found guilty of an offence who might otherwise be sentenced to custody, to serve the sentence in the community with specific conditions. Given that this is [R] first appearance before the youth court, and it appears that the Ministry of Social Services and the school environment have a very active community safety plan established for [R].

A Deferred Custody and Supervision Order would support [R] compliance and participation of the plan that is already in place. If [R] chooses not to participate in the community safety plan, and the condition(

s) are violated, then a suspension could be issued and a review would be held more quickly. Given [R] risk to re-offend sexually, his need for treatment and rehabilitation, the seriousness and nature of the offences, and the need to hold him accountable, the Youth Court may consider a term of open custody, pursuant to Section 42(2)(

n) YCJA, Custody and Supervision Order. If [R] was sentenced to a term of Open Custody, he would be able to access and participate in the community based programs that he is already attending. This would include his school and individual counselling. If he was sentenced to an Open Custody term he would also be able to access Adolescent Sexual Offender Treatment at Child and Youth Services. While in Open Custody, [R] would receive the structure, support and supervision that the Sexual Offender Treatment would require in order to be successful in the treatment program.

iii) Recommendation: It is respectfully recommended that a sentence of 6 months deferred custody and 18 months probation with the following conditions be ordered; 1. that the young person shall keep the peace and be of good behaviour; 2. that the young person shall appear before the youth court when required by the court to do so; 3. that the young person report within 2 working days to the Young Offenders Probation office located at 122-3 rd Avenue North and report to and be under the supervision of the youth worker assigned to him abide by all lawful directions of the Youth Worker; 4.

Reside in a residence approved by the Family Service Worker and abide by all house rules of the said residence (which may include a curfew) and not change that address without the express permission of the Family Service Worker; 5. That you have no internet access except supervised internet access at school; 6. That you shall not initiate, establish, or maintain contact with any male or female child under the age of twelve (12) years, not attempt to do so except when in the company of an adult who is aware of his offence pattern and with the circumstances approved by the Youth Worker or Family Service Worker; 7.

That you shall not possess any pornographic material; 8. Attend at, actively participate in and complete satisfactorily any Sex Offender Treatment Program or any other programming as directed by the Youth Worker; that being the Child and Youth Services, Adolescent Sexual Offender Treatment Program; 9. Shall not baby-sit or be responsible for children under the age of twelve years. THE ASSESSMENT OF BRIAN MCDONALD [ 28 ] As noted, Brian McDonald, M.Ed., had conducted an assessment of the accused and provided a report dated October 27, 2010.

In general it was his opinion the risk of sexual recividism was too great for the accused to be placed out of custody on a community based sentence. He noted as follows, commencing at page 7 in the recommendations: . . . RECOMMENDATIONS: 1. All the above information would suggest that [R] is not an appropriate candidate for out-patient sexual offender treatment. The risk for re-offending is simply just too high and [R] has already attended out-patient treatment unsuccessfully. Certainly he should be

referred to sexual offender-specific treatment, but if any positive impact is likely going to be made, such impact would likely be most probable in a group-home type situation. At this time, there is no specific sexual offender treatment program in a custody facility for Saskatchewan. He could be placed in either a locked facility or a facility that is staffed by professional familiar with working with sexual offenders and then he could receive sexual offender treatment from community resources.

However, considering [R] risk and previous behaviour, the best plan that could be considered would likely be to refer him to a group home situation that specifically responds to youth with sexually offending problems. The Ranch Ehrlo program is the only such program available in Saskatchewan. 2. Clearly [R] presents extreme risks to other children. As a result, if [R] is residing in the community, it will be highly important that vulnerable children be protected.

As a result, it is recommended that: a. he have no contact with children under the age of 12 without being supervised by an adult familiar with his sexual offending; b. he should not attend or go to places where children congregate such as swimming pools; c. he should not be in a bathroom with another child at any time; d. he should not baby-sit at any time with any child or adult; e. he should not sleepover at other peoples’ houses at any time; f. his whereabouts should be known at all times and he should be supervised by an adult who is familiar with his offending behaviour. THE ASSESSMENT LETTERS OF DR.

ARNOLD, PhD [ 29 ] As noted, Dr. Arnold had testified for the defence, and provided letters dated November 8, 2010 and January 3, 2011. In the one for November 8, 2010, he confirmed he had been contacted by the accused’s mother in December 2007, because the accused had been sexually assaulted by his older brother and has continued to attend since that initial consultation. In that assessment it was his opinion that the accused could be properly and safely managed in the community, rather than custody being required for public safety. He offered the following general observations, commencing at page 2: . . .

While I do not have all the details, it is understood that the charges against [R] for sexual offences occurred due to behaviour in the foster home. The return of him to [E] was thus considered necessary and safer than remaining there. It appeared that the level of supervision required as imparted to [E] through the therapy had not been provided in the foster placement. [E] has been providing constant supervision while [R] is with her, has informed the school and has discussed and arranged for appropriate attention there.

She has been appropriately challenging any hint of risk with [R], as well as attending to his general parenting needs. I have confidence that her level of provided supervision is appropriate and meets the supervision need for safe community-based placement for this child. Note that the sexual offences did not occur whilst [R] was in her care. All of this is development over time with [E] and [R]; there was an earlier occurrence where [J] and [R] were not adequately supervised, about which Social Services responded strongly.

This is a past situation and does not resemble the current parenting diligence: hence, as I understand it, the return of [R] to [E] care. I understand from your telephone message that the psychological assessment requested by the court recommended that [R] be placed in a residential facility. This provides for great concern both for the future of [R] in terms of bond between parent and child, and for his

longer term welfare. With [R], we have a young person who was sexually assaulted in a number of situations and has ‘passed this on’ to others via offending. I think removal of him from her care will harm this bond, and via this harm, be a detriment to his emotional development, his empathy and caring for others, and thus ultimately may impact on his risk. The developmental level of this child may not be appreciated within the court ordered assessment.

While I have not seen the assessment, the information provided makes me suspect that there was no developmental testing conducted, i.e., to ascertain the child’s cognitive and thought process functioning, and whether this is equivalent to his chronological age. Clinically, I find that he is psychologically younger than his chronological age, is highly dependent, and is responding well to his mother’s supervision. As noted, there is significant risk in interrupting this bond with a mother who is providing the necessary supervision within the community.

There is also risk in exposing him to others with delinquent and criminal orientations. It needs to be noted that we have a therapy process underway with two providers. I have met jointly with Lana Phillips, [E] and [R] on several occasions to coordinate this therapy. It would thus seem that we have the ingredients for a community-based placement for [R]. It would be emphasized, insofar as I understand, that this child has moved from victim to perpetrator within a specific foster home context.

It is not reasonable to consider sexual acts in which a child has been victimized as continuous with recent acts for which he has been charged as a perpetrator. It had been expected that the psychological assessment ordered by the court would provide for [R] access to the sexual offender treatment programs, and that it would be recommended that this be added to the current family and individual therapy being provided to [R] while he remains with his mother. [ 30 ] The positive opinion for the prospects of the accused being successfully managed in the community had been reflected in his testimony.

In that regard as well, in his assessment letter of January 3, 2011, he expressed some concern as to the methods of assessment used by Brian McDonald in concluding that the accused was a real risk to re-offend as a sexual recividist if placed in the community, rather than in some nature of controlled custody. On the first page he noted: . . . Please find attached test results relevant to the developmental level of [R]. Dr. Tracey Waskowic of my office kindly agreed to provide testing to him independently as a consultation to me.

The results indicate that this 12 year old boy, who is in grade 7, performs at a low average range intellectually, which means functionally that his comprehension will be beneath that age level. The results show that his abilities for reading and spelling are 2-3 years beneath his grade level. This has implications for the testing of the psychological assessment by Mr. McDonald. Mr. McDonald did not have information as to the [R]’s reading ability and he relied on the Jesness Inventory which is a test requiring reading. In his report Mr. McDonald noted some problems with the test he administered.

He then went on to interpret the testing even though he suggested that there were problems with the results. I do not think the test

interpretation, which this assessment is based on, can be relied upon in these circumstances. OTHER FACTORS Fetal Alcohol Syndrome [ 31 ] In an assessment dated May 16, 2011, Dr. Patricia Blakely, MD, PhD, made the following observation at page 2: . . . The diagnosis of Fetal Alcohol Syndrome (FAS) requires a history of prenatal alcohol exposure and the presence of three criteria. These include: 1) prenatal and postnatal growth retardation; 2) characteristic facial features; and 3) neurodevelopmental dysfunction (as evidenced by deficits in at least three domains of central nervous system functions).

While [R] has a history of prenatal alcohol exposure, that exposure is limited to a binge during the early part of the first trimester. He lacks the facial features and growth retardation. He also is not showing evidence of deficits in 3 domains of central nervous system functioning. I do not believe that it would be appropriate at this time to make a diagnosis within Fetal Alcohol Spectrum Disorder. . . .

Attention Deficit Hyperactivity Disorder (ADHD) [32] Dr. Declan Quinn, a psychiatrist, had also attended on the accused and assessed his mental state. In his report dated March 21, 2011, he noted the following on the issue of ADHD, at page 2: . . . The issue of behaviour problems were reviewed and discussed with his mother. She completed a standard rating scale to assess ADHD. This was the SNAP rating scale, and she does not identify any evidence of any symptoms of inattention, except for one symptom.

However, having had a chance to get a school report completed by his teachers and returned to me, they clearly identify enough signs and symptoms to qualify this young man for a clinical diagnosis of ADHD. . . . Queen ’s Bench Family Law Division Order [33] As noted in the Pre-sentence Report on July 23, 2010, the Court made an order returning the accused to the custody of his mother, for one year, subject to supervision. The return of the accused was subject to stringent conditions, including clause (f): . . . (

f) That [RC] shall be supervised, to the greatest extent possible, by [EB] or her designate at all times, and that [EB] will ensure officials at [R]’s school are aware of his circumstances such that appropriate supervision measures can be taken at school. Further, [R] must not be left alone with children under the age of 12 at any time. . . . [34] The order has apparently expired without Child and Family Services taking any more proceedings.

In the meantime, the accused’s mother has ensured full cooperation in planning with officials at the accused’s school last year, and there were no incidents of concern to report. Therefore, he is registered for the fall semester this year, in Grade 8 and is welcome by the school officials to return again. Presumably, the close supervision plan for the accused will be in place at school again this semester as it was last semester, to better ensure public safety. ANALYSIS [35] My thanks to counsel for their diligent efforts in providing legal briefs. They were most helpful and greatly appreciated.

Is the evidence for the Crown sufficient to establish that the accused had committed a violent offence as set forth in s. 39(1)(

a) of the YCJA, thereby allowing the Court to consider custody as an option? [36] The Court is mindful of the provisions contained in ss. 3, 38 and 39 of the YCJA regarding sentencing and the need to give them due consideration when appropriate. In these circumstances, s. 39(1) of the YCJA provides that a Youth Justice Court shall not commit a young person to custody unless under s. 42 the young person has committed a violent offence. [37] As is often the case, authorities which the parties have filed on this issue tend to be a product of their particular facts.

However, on this issue, priority should be given to reference made by the Crown to R. v. W.(D). (2006), 2006 SKQB 460 , 287Sask. R. 237 (Sask. Q.B., Wilkinson J.). After a careful analysis of the case law and appropriate legal principles, the Court noted atpara. 19: 19 It is self-evident that the harm that results from threats must be of psychological origin, and that psychological and emotional harmamount to bodily harm even where no physical force is involved. In the case before me, defence counsel is arguing a force-baseddefinition of harm that was rejected by the Supreme Court.

The psychological harm engendered by the sexual touching of children isimplicit and requires little in the way of enunciation or explanation. Although a simple touching of an individual without their consent isa technical assault, and could fall into the category of a “minor” assault that is not a “violent offence” under the R. v. D.(C.) definition,the sexual touching of a child under 14, cannot be considered as minor, and free of any connotations of violence. It is exactly why weteach children about good and bad touching.

I find that the offence of sexual interference with a child under the age of fourteen is a“violent offence” for purposes of the YCJA. Therefore, the presumption against custody in s. 29(2) of the Youth Criminal Justice Actdoes not apply when the Crown is seeking detention on the secondary ground under s. 515(10) of the Criminal Code. [38] Applying the principles herein it is apparent that the accused had indeed committed a violent offence in the contact andinteraction with each of the three innocent, vulnerable victims as alleged. This Court does so find.

What is the appropriate sentence to be applied to these offences? [39] The accused has submitted that regardless if the accused is found to have committed a violent offence under s. 39(1) of theYCJA, the principles of sentencing in the Act can be properly and adequately served by the accused being placed on a probation order for24 months, or in the alternative, deferred custody and probation for that same length of time.

For the most part, the authorities whichhave been filed which would support a stand alone probation order are not binding on this Court as a precedent and not particularlyhelpful. [40] The Crown is of the view the sentence of open custody of six to nine months, followed by a probation order thereafter for atotal sentence of twenty-four months would serve the ends of sentencing in the YCJA. Reference was made by the Crown in its legalbrief to the judgment in R. v. C.(V.I.) (2005), 2005 SKCA 95 , 269 Sask. R. 131 (Sask. C.A.).

In that case, the accused hadcommitted a sexual assault for which he had received a deferred custody sentence of six months followed by probation for 18 months. On appeal the Court concluded that a term of two years secure custody was the appropriate sentence, noting as follows, commencing atpara. 12: III. Was the Offence a Serious Violent Offence? 12

Section 2 of the Youth Criminal Justice Act defines a “serious violent offence” as “an offence in the commission of which a youngperson causes or attempts to cause serious bodily harm.” 13 The sexual assaults in this case amounted to rape. The child did not consent to the acts. She said at pp. 5 and 9: “When they do it to me, mmm, they do. I was saying no because they’re bigger than me and I’m just little.” Question, “Yeah. You saidno. What did they do after you said no?” Answer, “They just do it.” . . .

Question, “What does he want you to do, when he puts it close to your face like that?” Answer, “He says lick it, except I don’t. I say, Isay mom.” Question, “What does he have — what does he have to say? What does he do when you say mom?” Answer, “He, he — Idon't know. He doesn’t say nothing. He just puts his hand on my mouth.”

There is also the obvious difference in age and size which made any resistance practically impossible. The sexual assaults occurredrepeatedly over the period of more than a year. The trial judge made a specific finding that although the child suffered no physicalinjury, she suffered serious psychological trauma. 14 The Supreme Court of Canada discussed the violence inherent in the act of rape in R. v. McCraw, (SCC), [1991]3 S.C.R. 72 (S.C.C.), at pp. 83 to 85, at the end of which the Court concluded that rape can cause serious psychological harm to thevictim amounting to bodily harm.

The following remarks at p. 84 are appropriate to this case: [30] It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs.Rape throughout the ages has been synonymous with

an act of forcibly imposing the will of the more powerful assailant upon the weakervictim. Necessarily implied in the act of rape is the imposition of the assailant's will on the victim through the use of force. Whether thevictim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rapehas actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy byunwanted sexual intercourse.

The assailant has imposed his will on the victim by means of actual violence or the threat of violence. [31] Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violentact will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychologicalharm could certainly result from

an act of rape. 15 The circumstances of this case clearly mandate a finding that the offence was by its very nature a violent offence, and that therespondent, by committing it, caused psychological harm to the victim amounting to bodily harm. The offence was, accordingly a seriousviolent offence within the definition found in s. 2, and the trial judge erred in failing to so find. 16 Section 42(5) of the Youth Criminal Justice Act says: 42.

(5) The court may make a deferred custody and supervision order under paragraph (2)(

p) if: (

a) the young person is found guilty of an offence that is not a serious violent offence; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. Accordingly, the sentence imposed was an illegal sentence and must be set aside. [41] I note also that s. 42(9) of the Youth Criminal Justice Act which sets out the formal procedure to be followed in a seriousviolent offence application of this nature, which apparently had not occurred in R. v.

C.(V.I.), supra: 42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties anopportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence andendorse the information or indictment accordingly. [42] In any event, it may be that the principles in R. v. C.(V.I.), supra, are not necessarily binding here because the issue thereinwas mainly the lack of an application under s. 42(5) for a serious violent offence designation.

However that does not mean that thisCourt cannot consider a significant period of custody if the purpose and principles of sentencing set forth in the YCJA suggest that natureof a result. [43] In weighing the submissions of the Crown for custody rather than deferred custody, there are concerns by the Court thatBrian McDonald may have misinterpreted his own test results due to the methods which he had used, and some of the cognitive deficits

from which the accused suffers. As well, Dr. Arnold had suggested that there is a specific test for adolescent sex offenders which could have been used but was not. [44] It appears as well that the contact by Brian McDonald with the accused was limited to this single analysis. Dr. Arnold, on the other hand, has had ongoing professional interaction with the accused and his family for roughly four years, since 2007. [45] The battery of testing upon which Dr.

Arnold relies and his ongoing contact with the accused has caused him to conclude that he is a good risk to be placed in the community for treatment and counselling with the plan of controls to protect the public from sexual recividism by the accused. In all the circumstances, the opinion of Dr. Arnold has more value and relevance than that of Brian McDonald.

As such, the evidence of the Crown is not sufficiently credible to cause the Court to conclude that custody is a necessary option for the Court to choose, despite that the accused was found to have committed a violent offence under s. 39(1) of the YCJA. [46] The Court is, of course, mindful of the trauma which has been caused to the three vulnerable young victims by the actions of the accused. However, the accused is also young and has made great progress in the loving, caring and conscientious input from his mother.

It would appear that she has been entirely dedicated to ensure ongoing involvement with the accused and Dr. Arnold for counselling and treatment. As well, she has been a force for positive results in her cooperation with school officials to develop a plan which will better ensure public safety. That plan was apparently a success, because there were no incidents last semester and he is being welcomed back by school officials for the fall semester this year.

Likewise, the accused’s rehabilitation and reintegration into society will be well served by her having successfully completed the one year order made by the Family Law Division, on July 23, 2010, containing stringent conditions.

Regardless, if problems do develop, the Crown has more options dealing with a maximum 6 month deferred custody order then it would have with a 24 month probation order. [47] Applying the principles contained in ss. 3, 38 and 39 of the YCJA , the Court has concluded the just and appropriate sentence on these matters is a six month deferred custody sentence, followed by an eighteen month probation order as had been submitted in the Pre- sentence Report.

We will need to speak to the conditions which may be similar or the same as had been originally suggested in the report in order for the accused to participate in the Adolescent Sex Offender Treatment Program. That will engage the accused in counselling for the two year period, on which he will be subject to this sentence. We will also need to address in court the mandatory orders under the DNA identification provisions and the firearms prohibition in s. 51(1) of the YCJA. It appears to be for a mandatory minimum period of two years, in s. 51(2) of the YCJA. _____________________ P.S. Kolenick, J