R. v. A.B., 2014 NSPC 63

YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. A.B. , 2014 NSPC 63 Date: 2014-07-23 Docket: 2719577 Registry: Pictou Between: Her Majesty the Queen v. A.B., a young person within the meaning of the Youth Criminal Justice Act DECISION ON SENTENCING Restriction on Publication: Pursuant to s. 110 of the Youth Criminal Justice Act, no person shall publish the name of the young person or any other information related to the young person if it would identify the young person Judge: The Honourable Judge Del W.

Atwood Heard: 2, 23 July 2014, in Pictou, Nova Scotia Charge: Para. 266a of the Criminal Code Counsel: William Gorman, for Nova Scotia Public Prosecution Service Stephen Robertson, for A.B. By the Court: [ 1 ] A.B. is being sentenced today for an indictable charge of assault and one

summary charge of theft. [ 2 ] This sentencing decision will deal with the assault charge, as it is by far the more serious. [ 3 ] The facts of that charge were read to me on 2 July 2014 and the court entered a finding of guilt under s. 36 of the Youth Criminal Justice Act . At that time, the facts were unopposed by defence counsel. [ 4 ] I then heard sentencing submissions from the prosecution which proposed a 4-to-6-month deferred custody order, followed by a lengthy term of probation. I inquired of counsel whether this was a joint submission, and I was advised that it was not.

At that point, I proposed an adjournment of A.B.’s sentencing hearing to allow counsel to make more detailed submissions; this was because I was considering the appropriateness of a custody and supervision order. As this would have exceeded the sentence being advocated by the prosecution, I was of the view that an adjournment would be appropriate to allow the prosecution, and, particularly, defence counsel to address the issue of whether a sentence that did not include some period of actual custody would be a meaningful consequence for A.B. In doing so, I followed the procedure recommended in R. v.

R.R.B ., 2013 BCCA 224 . I have since received very detailed and comprehensive briefs from counsel. The prosecution has not altered its position in support of a deferred-custody order. Defence counsel asks that the court consider a term of probation. [ 5 ] The undisputed facts put before me in the s. 36 hearing were that on 7 March 2014, C.D. was enjoying some free time at a local arcade located at the Highland Square Mall. C.D. is a young, openly bisexual male. A.B. approached C.D. and began calling him a “faggot”, and repeated the term aggressively several times.

C.D. remained passive, and attempted to leave the mall. An eyewitness, a Ms. M., was departing the mall at the time; she saw “one boy yelling at another”; she heard the aggressor using profanity, and saw the victim being struck. Ms. M. yelled at A.B. to stop. [ 6 ] Afterwards, a young person who had recorded the fight on a smartphone uploaded it to the social-networking site, Facebook. As well, A.B. posted comments on his Facebook account in which he stated, “I’d beat the fuck out of him”, and “the little bitch better hope I don’t see him”. [ 7 ] The prosecutor characterized this offence as “outrageous”.

I did not take this to be an appeal to emotion or sentiment; instead, it describes properly A.B.’s actions as an outrage, in the sense of a profound violation of C.D.’s legal and dignitary rights. [ 8 ] In stating this, I am mindful of the fact that A.B. has not been found guilty of committing a crime that includes the incitement

or promotion of hatred as an essential element. Rather, A.B. committed an assault. The elements of the offence of assault as specified in para. 265(1) (

a) of the Criminal Code are an intentional application of force to another, and a knowing lack of consent. [ 9 ] However, based on the statement of fact put before me in support of the s. 36 YCJA finding of guilt, I am satisfied beyond a reasonable doubt that A.B.’s assault upon C.D. was motivated by bias, prejudice or hatred based on C.D.’s sexual orientation. What effect does this finding have upon the sentencing process? [ 10 ] Sentencing a young person requires a court to consider factors recited in ss. 3, 38 and 39 of the YCJA .

These provisions lay out expansively the principles to be considered by courts in determining an appropriate sentence for a young person found guilty of an offence; significantly, none of them refers specifically to sexual-orientation-based bias, prejudice or hatred as aggravating factors, unlike sub- para. 718.2 (a)(

i) of the Criminal Code which applies to sentencing hearings for adults. [ 11 ]

Section 50 of the YCJA makes it clear that the sentencing part of the Criminal Code —with the exception of a small number of provisions not in play in this case—does not apply to youth-justice proceedings. This means very clearly that sub-para. 718.2(a)(

i) of the Code is not engaged here. Does this foreclose consideration of sexual-orientation based bias or hatred from being considered as an aggravating factor in sentencing hearings involving young persons? In my view, it does not. [ 12 ] Certainly, the court must be cautious in not going outside the YCJA in conducting a youth-justice sentencing hearing. This was the point made by Humphries J. in R. v. Cran , [1] and I agree with it. [ 13 ] Yet, it is certain also that the criminal law has long recognized hatred-and-bias-motived crime as deserving of greater sanction. A classic example of this is R. v.

Ingram ; Dubin J.A. (as he then was) discussed the need to consider the motivation of bias or prejudice in the sentencing process in this way: 6 The attack on Mr. Kanji was, as the trial judge found, a completely unprovoked one and racially motivated. In his reasons for judgment the learned trial judge stated: The Criminal Code makes no distinction as to who that person is, nor do I. What I mean is, Mr. Kanji is a fellow human being and my sentence would be the same were he black, brown, white, yellow or red.

It thus appears that the learned trial judge was of mind that the racial nature of the attack was not to be taken into consideration as an aggravating factor in determining the appropriate sentence. 7 It is, of course, axiomatic that all persons are treated equally under the law. In that respect, if the situation had been reversed and the accused were non-whites and the victim white, the sentence to be imposed would be the same as in the reverse situation.

I rather suspect that the learned trial judge had that principle in mind when he made the observation which I have just quoted, but, with respect to the trial judge, in my opinion he erred in failing to hold that the racial motivation for the cowardly attack was an aggravating factor to be taken into consideration in the imposition of the sentence, just as it would be an aggravating factor if the victim were elderly, feeble or retarded. 8 It is a fundamental principle of our society that every member must respect the dignity, privacy and person of the other.

Crimes of violence increase when respect for the rights of others decreases, and, in that manner, assaults such as occurred in this case attack the very fabric of our society. Parliament's concern for the incitement of racial hatred is reflected in s. 281 of the Criminal Code . An assault which is racially motivated renders the offence more heinous. Such assaults, unfortunately, invite imitation and repetition by others and incite retaliation. The danger is even greater in a multicultural, pluralistic urban society.

The sentence imposed must be one which expresses the public abhorrence for such conduct and their refusal to countenance it. [2] [ 14 ] Treating hatred or prejudice as rendering a crime more serious is consistent with these common-law princples, and is well encompassed in the statutory principles laid out in the YCJA, which require that sentencing courts take into account the seriousness of an offence (para. 38(2)(c)), the harm done to victims and to the community (sub-para. 38(2)(e)(iii) and para. 38(3)(b)), the need for denunciation and deterrence (para. 38(2)(f)), and, finally, other aggravating circumstances relevant to the purposes and principles of youth-justice sentencing (para. 38(3)(f)). [ 15 ] I recognize that some of the cases that have been decided by courts in this country involving bias-or-hatred motivated crime have been nuanced.

An example of this is the superbly reasoned decision of Campbell J.P.C. (as he was until recently) in R. v. A.B . [3] One of the key points made in obiter in A.B. is the distinction between proof of a hate crime under

section 319 of the Code , as compared to proof at a sentencing hearing that a crime was motivated by bias, prejudice or hatred. [4] The former requires proof beyond a reasonable doubt of incitement or wilful promotion of hatred as an element of the offence, almost in the sense of a call to arms; the latter involves proof of an offender’s personal motivation only. I agree with this analysis. [ 16 ] In the past, courts established rules of evidence based on cultural and gender-based myths and stereotypes that had the effect of working great injustices in people’s lives, particularly in the criminal-justice system.

There is no place for such artifices in modern criminal justice. The burden of proving beyond a reasonable doubt the existence of an aggravating factor in a sentencing hearing is a substantial one, borne by the prosecution. But we should not be creating artificial burdens that prevent improperly hatred-motivated crimes from being identified as aggravating factors in the sentencing process.

[ 17 ] The fact is that if somebody commits mischief by defacing a beit kvarot with swastikas, [5] or by burning crosses on the lawns of African-Canadians, that person can be said securely to have perpetrated a crime motivated by bias, prejudice or hatred. [ 18 ] And so it is if an openly LGTB member of the community is aggressively accosted with shouted taunts of “faggot” and then attacked physically while displaying a completely passive posture, that person is a victim of a crime motivated by bias, prejudice or hatred. [ 19 ] It is true that, depending upon the circumstances, such actions may rise to the level of full offences under s. 319 of the Code .

However, that is not an issue I am required to decide today, as A.B. is not charged with such a crime. [ 20 ] In my view, a deferred-custodial sentence in this case, along the lines recommended by the prosecution is appropriate as a meaningful consequence for A.B. I say this, notwithstanding the fact that A.B. is a first-time offender. [ 21 ] First of all, a custodial sentence is permissible legally under para. 39(1)(

a) of the YCJA , as A.B. committed a violent offence. [ 22 ] Furthermore, this was a bias-or-hatred motivated crime based on C.D.’s sexual orientation, and ought to be denounced in the strongest possible way. I recognize from the supplementary evidence presented in defence counsel’s sentencing memorandum that there might have been a history of conflict between A.B. and C.D.; however, I remain unshaken in my conclusion regarding A.B.’s motivation, based on clear and unequivocal evidence, [ 23 ] Most importantly, this is a type of crime that is far too prevalent in society.

Recently released statistics confirm that, while most hate-motivated offences in Canada that have race or religion as their targets involve acts of property crime, fully two thirds of those offences that target persons based on their sexual orientation involve actual physical violence. [6] The risk of violence faced by LGTB members of our community was identified by conclusive social-science data long ago. [7] And, yet, it continues. The fact is that one act of violence of this sort is too many, and there is a real requirement that the sentence imposed by the court today emphasise the need for general deterrence.

Canadian community values recognize that hatred-or-bias-motivated violence is unacceptable in our society, and a zero-tolerance principle makes it necessary that a strong and unmistakable message be sent to those whose actions depart from that well recognized norm.

The data make clear, as well, that the typical profile of a perpetrator of this sort of violent act is a male under the age of twenty-five; indeed, the typical profile of a victim is that of a young male. [8] Accordingly, the court is dealing with the very type of offence and offender that would require a high level of deterrence. [ 24 ] Finally, the individual circumstances of A.B. call for deferred custody. While this is your first offence to come before the court, the presentence report tells me that you have not put a lot of effort into school this year, and you have started a regular cannabis habit.

You will have to make a full-time commitment to presenting a better version of yourself each day, because the consequences of tripping up on a deferred-custody order will derail right away your plans of moving to (identifying information redacted) with your dad. [ 25 ] The court sentences A.B. to a six-month term of deferred custody for the para. 266(

a) count, which is the maximum deferred- custody sentence permissible under para. 42(2)(

p) of the YCJA, as well as a firearms-prohibition order under s. 51 of the YCJA and a community service order. You have to know that this kind of thing can never happen again. You know that it was wrong, and I know from the pre-sentence report that you know that. I want you to talk to your youth worker about presenting an apology to C.D., but otherwise, you cannot contact him in any way, and that includes using Facebook to post messages about him. I know that you are capable of doing good things. Now you get to prove it. JPC [6] Canada. Statistics Canada. Canadian Centre for Justice Statistics. “Police Reported Hate Crime in Canada, 2012” (2014), Catalog no. 85-002-x.