Her Majesty the Queen - v. -, 2020 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2020 SKPC 13 Date: June 30, 2020 Information: 991082496 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - M.A. Appearing: Ms. Zoey Kim-Zeggelaar For the Crown Mr.

Alexander Deacon For the Accused 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 in relation to an offence alleged under the Act . JUDGMENT D. KOVATCH , J Background [ 1 ] The accused, M.A., was charged that on February 22, 2019, he committed a sexual assault

on D.L and caused bodily harm to her contrary to section 272(1) (

c) of the Criminal Code . Other charges were laid in relation to the incident. On September 25, 2019, the accused, through his counsel, entered a guilty plea to the above mentioned charge. All other charges were withdrawn. The Court ordered a pre-sentence report and a Sexual Offence Risk Assessment. On February 25, 2020, counsel made extensive sentencing submissions before me. I reserved my decision. This is that decision. The Facts [ 2 ] At the start of the sentencing submissions, counsel placed before me an Agreed Statement of Facts.

During the course of their submissions, each counsel added a few uncontroverted facts. I have added these uncontroverted facts to the narrative primarily obtained from the Agreed Statement of Facts. [ 3 ] This incident occurred on February 22, 2019. On that date, the accused, M.A., was about a month shy of his 14 birthday. His date of birth is March 20, 2005. The victim, D.L., a young woman, was also 14 years of age. [ 4 ] On February 22, 2019, a young man, B.P., invited D.L. to come to his home. D.L. knew B.P. as a casual acquaintance. D.L. and J.F., another young man, walked to the residence of B.P.

Upon entering the residence, D.L. went to the basement, where B.P. had his room. A number of other individuals, including at least four young males, including the accused, were in the basement playing video games and watching television. [ 5 ] Shortly after D.L.’s arrival, B.P. went and spoke to the other boys. It is not known what was said, but B.P. began touching D.L. inappropriately. He took her to the bed and forced her down. B.P. began removing D.L.’s clothing. She was held down by some of the other boys while this happened. B.P. then vaginally penetrated D.L. with his penis.

He ejaculated on her chest. [ 6 ] What ensued was a course of multiple sexual assaults, in which at least four other young men, including the accused, all participated. The victim, D.L., was vaginally penetrated and anally penetrated by all of the boys. The accused, M.A., vaginally penetrated the victim twice. The accused ejaculated twice; once on the victim’s chest and once on or in her mouth. [ 7 ] They all forced their penises into her mouth, which prevented the victim from crying out for help.

She described tasting something disgusting in her mouth. [ 8 ] B.P. was the primary instigator, inviting the others to participate, and calling J.F. a “pussy” for not taking part. At one point in time he attempted to force J.F. to participate. [ 9 ] B.P. also directed all of the other boys to wear latex gloves, to avoid transfer of finger prints or DNA. The gloves were disposed of after the fact. [ 10 ] B.P. used at least one cell phone during the assault.

He recorded at least one video image, then sent it to the accused’s cell phone. [ 11 ] After the incident took place, I.C., another friend of B.P., attended at the house. B.P. told him that “the group” had sex with a girl. B.P. named all four other individuals, including the accused, M.A. [ 12 ] Immediately after the incident, D.L. reported matters to the police. She also attended the Regina General Hospital for a sexual assault examination.

[ 13 ] The police attended at B.P.’s home. In the basement of that house they located latex gloves, used condoms, used paper towel and bedsheets that had been stripped from the bed and put in the washing machine. [ 14 ] The victim, D.L., suffered lacerations to her vagina and anus. Victim impact statements were prepared by D.L. and her mother. As one might expect, the emotional and psychological scars suffered by D.L. and the family are much more significant and long lasting.

The Pre-Sentence Report [ 15 ] Defence counsel and the pre-sentence report presented significant family background information on the accused. They advised that the accused and his family all came from Damascus, Syria. The accused has seven other siblings, ranging from three months to 15 years of age. In May 2014, because of the war in Syria, the family moved from Syria and relocated to a camp in Jordan. They were located at this camp for approximately one year and eight months before being flown to Montreal in January 2016. They spent one day in Montreal before being permanently relocated to Regina.

Both the pre-sentence report and defence counsel described the family as a good and supportive family. Both the pre-sentence report and defence counsel pointed out that the accused has had no other incidents with legal authorities, other than this incident. [ 16 ] It would appear from the pre-sentence report that the family, and in particular, the accused, M.A., have done fairly well in their transition to life in Regina. The accused has been enrolled at Thom Collegiate in Regina. His attendance has been good. He has an average of 76 per cent.

His teachers described him as a good student and say that he is always respectful and polite. He was described by the writer of the pre-sentence report in similar terms. He is also described by teachers as an individual who is fairly quiet and keeps to himself. Defence counsel described his client as a man of few words, but a serious individual. His says his client accepts responsibility for this incident, and is remorseful. I accept counsel’s description of his client as fair and accurate. [ 17 ] The writer of the pre-sentence report indicated that M.A. accepts responsibility for his actions.

However, he also noted that M.A. downplayed the seriousness of events. The writer stated M.A. disclosed the only reason why he is in this situation is because he was “peer pressured” into having sex with the victim, as the other boys in the room were calling him a “pussy”. Defence counsel said that it never occurred to the accused to leave. He never thought of leaving. [ 18 ] The pre-sentence report indicates that the accused is a Level III risk to offend generally, which means a moderate risk to re-offend. In terms of sexual re-offending he is at a Level I, a low risk to re-offend.

The pre-sentence report recommends that M.A. be sentenced to a term of custody and supervision followed by a period of probation. Risk Assessment Report [ 19 ] This report was prepared by a psychologist and social worker both employed with Saskatchewan Child and Youth Mental Health. The report is clearly a positive one for M.A. It described his family as close and supportive. It indicates the family is closely connected to their mosque and local Muslim community. The family does not resort to physical punishment or discipline. There is no indication of alcohol or drug problems.

M.A. has not been involved in any other delinquent behaviours. The writers speak of M.A.’s strengths, and state as follows: M.A. has numerous strengths that can help mitigate his risk for further involvement in the criminal justice system. M.A. has no prior criminal history and he has admitted to and pled guilty to the charges. He stated that he realizes that the victim will be negatively affected by his actions and feels badly for what he has done. He has support from family who are involved in his life.

He also does not use substances such as drugs, he attends school regularly and he seems motivated to behave well at school. He has a number of pro- social interests such as school, athletics and physical exercise and his family is closely tied to their mosque and the Muslim community. M.A. has positive goals for his future, including being a surgeon or engineer. The writers go on to indicate that M.A. would benefit from and should participate in adolescent sexual offence specific treatment programming.

This would include follow-up group and or individual counselling sessions to work on alleviating the risk factors identified in the assessment. Parental involvement is also integral to the treatment.

The Positions of Counsel [ 20 ] Crown counsel Ms. Zeggelaar discussed the extreme and disgusting facts. She discussed the physical and psychological injuries to D.L. and her family. She discussed the dehumanizing and humiliating nature of the attack. On the basis of these extreme facts, counsel indicated that the court must make a statement and very seriously deal with these matters. She asked the court to consider a sentence of custody for two years, being the maximum sentence allowable by law, plus probation. [ 21 ] Defence counsel agreed the facts are severe. He referred to the principles of sentencing contained in

section 3 of the Youth Criminal Justice Act, SC 2002, c 1 [ YCJA ], and its emphasis upon rehabilitation and reintegration of the young person. He asked the court to consider probation or a sentence of open custody for a period of six months, followed by probation. Analysis [ 22 ] In the case of P.R. v The Queen , 2018 SKCA 27 , the Court quoted at length from the YCJA , and discussed the goals and principles of sentencing a young person. At paragraph 61 to 63, Mr.

Justice Herauf stated: [61] The YCJA provides a detailed sentencing code that dictates what principles and factors must be considered when sentencing youth offenders. The focus of sentencing under the YCJA is “balancing conflicting principles to arrive at a sentence tailored to the individual circumstances”: R v Okemow , 2017 MBCA 59 at para 47 . Sentencing youth pursuant to the YCJA mandates a context-specific approach; an approach that differs entirely from the sentencing regime for adult offenders. [62] The sentencing principles for youth pursuant to the YCJA are enumerated in the Act’s

Preamble, its Declaration of Principle in s. 3 , and the detailed sentencing principles in s. 38 . The constant theme woven through these provisions is that a youth sentence seeks to ensure meaningful accountability through restorative sentences, as opposed to reliance on incarceration, to promote the long-term protection of the public. [63] The

Preamble to the YCJA states the primary purpose of the legislation is to ensure a youth criminal justice system that: ... commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons.

At paragraph 66, the Court stated that judges must “reserve the use of custodial sentence for the most serious offenders and only when a non-custodial sentence would be unable to ensure meaningful accountability and promote the long-term protection of the public.” At paragraph 75, the Court states: Although denunciation and deterrence may be considered in determining the appropriate sentence for a youth offender, they must not be the sole objectives considered and they must not take paramountcy over the other sentencing principles contained in the YCJA . [ 23 ] Having stated these general goals and principles, the Court turned to look at the appropriate sentence for a major sexual assault.

At paragraph 78 the Court stated: This was a major sexual assault that included sexual intercourse. The victim was 11 years old and was the appellant’s niece. The sexual assault caused the victim serious psychological harm. Generally speaking, major sexual assaults such as this merit a custodial sentence in order to reflect the seriousness of the offence and to hold the youth accountable, unless there are unique circumstances that dictate a non-custodial sentence is reasonable in the circumstances.

The Court cited a number of decisions in support for this last statement. [ 24 ] The Court went on to conclude there were significant exceptional circumstances in that case that justified a non-custodial sentence. At paragraph 93, the Court stated: This was a major sexual assault, which merits a meaningful and proportionate sentence to hold the appellant accountable for his actions.

While I conclude major sexual assaults should generally attract a custodial sentence, the unique circumstances of this case, including the significant delay, the appellant’s age at the time of sentencing, his good conduct since the offence, and his compliance with release conditions, have convinced me that the principles and objectives of sentencing pursuant to the YCJA are more meaningfully achieved through the imposition of a non-custodial sentence.

[25] In my respectful view, the facts of this case are so severe, the circumstances so horrendous, that an actual custodial sentence mustbe imposed. If I were to not impose an actual custodial sentence in this case, it is difficult to imagine under what circumstances theCourt would ever impose actual custody for a major sexual assault. In my view, the facts are such that the only just and proportionatesentence in these extreme circumstances is one of actual custody. [26] Crown counsel also referred me to R v R.K.U. (1994), (SK CA), 128 Sask R 192 (Sask CA) and R v K.G.B.and S.R.B., 2005 NBCA 96 [KGB].

Both of these cases support the proposition that where a youth is convicted of a severe sexualassault, a custodial sentence should generally be imposed.

In KGB, at paragraph 50, the Court stated: Although the general rule borne out of the YCJA is that a youth justice court judge must not sentence a youth to custody unless the Courthas considered all alternatives that are reasonable in the circumstances, the Act does contemplate that there may be offences thecircumstances of which are so aggravating that the imposition of a non-custodial sentence would be inconsistent with the purpose andprinciples of sentencing set out in

section 38 of the Act. And at paragraph 52: What is evident from the wording of these provisions is that Parliament contemplated cases where the circumstances of the offencewould be such that a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. Thus, thelegislator recognized that in some circumstances, custody is the only just sanction that will hold a youth accountable for the offencecommitted, that will have meaningful consequences and that will promote the youth’s rehabilitation and reintegration into society. Thepremeditated rape of a defenseless 15 year old girl, as occurred in this case, is one of these offences. [27] For these reasons, I will impose a sentence of actual custody, followed by probation. However, I will not impose a sentence oftwo years, as requested by the Crown.

While the facts of this accused’s involvement are very severe, he was not the ring leader, and atleast one other individual is deserving of greater punishment than is this accused. It would seem to me that the maximum penalty thatcould be imposed upon that individual is two years of actual custody. This individual’s sentence should be less. Secure versus Open Custody [28] In the case of R v J.F., 2018 SKCA 5 the Court stated that the Youth Court must consider and specify whether custody is openor secure.

Failure to address this question will be considered an error of law. [29] In this case, M.A. has continued to live at home. His home and family appear to be strong and supportive. He was not involvedin any problems with the law prior to this incident, and there is no indication he has been involved in any problems since this incident. There is no suggestion that he has not strictly complied with all of the terms imposed upon his judicial release. The accused appearsremorseful, and he and his family appear to be taking this matter very seriously.

I think it likely that he will comply with all conditionsimposed by the Court and or the custodial facility. Simply stated, I do not believe that M.A. is a security risk or that the public is indanger so that secure custody is required. Conclusion [30] M.A., on the sole charge that you have pled guilty to, you are ordered to serve 10 months in custody, to be followed by fivemonths to be served under supervision in the community subject to conditions.

I also advise that “if you breach any of the conditionswhile you are under supervision in the community, you may be brought back into custody and required to serve the rest of the secondperiod in custody as well. You should also be aware that, under the provisions of the Youth Criminal Justice Act, a court could requireyou to serve the second period in custody as well.

The periods in custody and under supervision in the community may be changed ifyou are or become subject to another sentence.” [31] Following your release from custody and supervision, I place you on probation for a further period of nine months on thefollowing conditions: 1. Keep the peace and be of good behavior.

2. Report to the court when required to do so. 3. Report to a Youth Worker at 200-1942 Hamilton Street, Regina, Saskatchewan, phone 306-787-0591 within two working days. Continue to report and be supervised as told to do so by the Youth Worker or designate assigned to you. 4. Reside at _______, Regina, Saskatchewan, or a residence approved by your Youth Worker or designate. You may not change that residence without the prior permission of the Court or the prior written permission of your Youth Worker or designate. 5.

Stay inside your approved residence from 10 p.m. each night to 6 a.m. the next morning unless you have the prior written permission of your Youth Worker or designate to be outside your approved residence during your curfew. You must come to the door of your approved residence when asked to do so by a Youth Worker or designate, or Police Officer, who may be checking the residence and curfew conditions of this order. 6. Participate in assessments and complete programming for sexual offending as told to do so by your Youth Worker or designate. 7.

Go to school, attend day programming, or seek and maintain employment as told to do so by your Youth Worker. 8. Have no contact of any kind in any way, directly or indirectly with D.L., H.A., L.D., E.B., or B.P., except through a lawyer or if necessary while attending the same school or school event. You are not to be at the residence, work place or school of any of those individuals except as allowed by your Youth Worker or designate, or if necessary while attending the same school or school event.

Dated at the City of Regina, the Province of Saskatchewan, this 30 th day of June 2020. ______________________ Kovatch, J