Her Majesty the Queen ) Todd Rambow ) for the Crown - v. –, 2014 MBPC 59

2014 MBPC 59 THE PROVINCIAL COURT OF MANITOBA Flin Flon Centre BETWEEN: Her Majesty the Queen ) Todd Rambow ) for the Crown - and – ) ) Rebecca Crookshanks L. I. ) for the Accused ) ) Judgment delivered: ) September 2 nd , 2014 RESTRICTION ON PUBLICATION : Please note that the Youth Criminal Justice Act, section 110(1), which prohibits the publication of any information that may identify a person as having been dealt with under this Act, applies to this judgment. L.

ALLEN, P.J. [ 1 ] After a trial held on February 4 th and February 6 th , 2014, in Flin Flon, Manitoba, the accused, L.I., a “young person” within the meaning of The Youth Criminal Justice Act ( YCJA ), was found guilty of a sexual assault against 15 year old N.D. This assault took place on August 17 th , 2012, in Flin Flon. At the time of the offence, the accused was 17 years old. [ 2 ] The Crown proceeded by indictment and seeks a custody/supervision sentence of 12-months with Probation to follow. Defence put forward a proposed disposition of a period of two years of Probation.

THE FACTS: [ 3 ] On August 17 th , 2012, the complainant, N.D., attended a house party in Flin Flon. Also present was the complainant’s sister, K.D., who was then 17 years old. The house party was at the home of J.P., a friend of K.D.’s. Also present was the complainant’s friend, C.W. The young women, other than K.D., were consuming alcohol. They were later joined at the house party by a group of young men.

This group included L.I. and his three friends, A.B., T.Q. and T.Q. [ 4 ] At some point, several hours after the girls had convened and approximately one hour after the young men had arrived, the entire group left to go to a “bush party” at Phantom Lake, a lake not far from the city of Flin Flon. The party at the lake did not last long as police arrived and sent all participants on their way.

The group of young people then made their way back to the home of J.P. [ 5 ] From the start of the evening’s socializing, N.D. had been drinking “very strong” alcoholic drinks mixed at a ratio of three parts vodka to one part Seven-Up. She had also had two shot glasses of tequila. The complainant testified that she believes she consumed more than half of a 26-ounce bottle of vodka in addition to the tequila. She testified that she began feeling sick at Phantom Lake and eventually vomited on the deck of J.P.’s house as she was returning there from the “bush party”.

She had returned to the party house in a car with, amongst others, L.I. and his friend (one of the T.Q.’s). She testified that she was “blacking out” at the back of the house. She also said “everything was blurring together”. She then entered the house and was taken by other young women to a washroom near the door, where she vomited multiple times. As she was still feeling sick, she was put on a couch by her sister. She testified that all she wanted to do was sleep. The rest of the girls then left the house to go to a local pizza restaurant to buy food. The girls were gone for somewhere between 15-45 minutes.

When they returned, N.D.’s sister, K.D., went to look for the complainant and found her in an upstairs bedroom with the accused on top of her, both naked, apparently engaging in sexual intercourse. At that point, K.D. shut the door and called to J.P., the party hostess, to deal with the situation. J.P. testified that she attended the bedroom and found L.I. on top of N.D. [ 6 ] N.D. testified that she had not met L.I. before the night in question. She also said that during the evening she had barely spoken with him.

She said that she had no intention of pursuing any kind of romantic or sexual relationship with him and did not consent to sexual contact of any sort.

[7] L.I. conceded that sexual intercourse took place between himself and N.D., but maintained that it was consensual. [8] Both K.D. and J .P. testified as to the level of N.D.’s intoxication. K.D. said that N.B. “pretty much drank the whole twenty-six. C.W. drank only a little bit”. (NOTE: C.W. was also drinking from the bottle brought by N.D.). [9] J.P. said that when she found N.D. in the bedroom with the accused, the complainant was passed out.

J.P. also said that in heropinion, N.D. was too drunk to have walked up the stairs from the basement, where she last saw her, to the upstairs bedroom, where shefound her after returning from buying pizza. She did not think that N.D. could have gotten up the stairs herself. [10] K.D., on finding her sister, described her as being “very confused”. She said that N.D. was muttering “where am I?”. She furtherstated that her sister was “nearly blacked out” and that she needed help to sit up and could not dress herself.

She said that when sheentered the bedroom, L.I. was moving on her sister, but N.D. did not have her arms around the accused and she looked “dead”. [11] The attending police officer, Cst. E. Wiita, who arrived at the scene shortly after the accused and N.D. had been found together,gave a full description of the indicators from N.D.’s behaviour which were consistent with severe intoxication.

The officer said that shewas so concerned about N.D.’s condition that she wanted her to get medical attention “as something seemed not right”. [12] The young person, L.I., originally acknowledged drinking between seven and eight beers, which he admitted to drinking “quickly”. On cross-examination, he admitted that he did not actually remember how much he drank.

He also acknowledged that he “does notremember the night clearly” and “doesn’t remember all parts of the night”. [13] L.I. testified that he was aware that N.D. had been drinking, but he was unaware that she had thrown up and he thought that becauseshe was sitting up in the basement and drinking water, “she was okay”. [14] Defence witness, A.B., described his friend, the accused, as drunk. He also said he saw L.I. drinking at the bush party, whichcontradicted L.I.’s assertion that he was not. A.B. also said that N.D. was quite drunk by the time she left the bush party.

He also saidthat he was aware that N.D. may have vomited three times and that she threw up so much that she “flooded the toilet”. [15] After going into the bedroom where L.I.. was found with N.D., A.B. said he helped L.I. find his clothes because “If I was that drunk(as L.I.), I would like help to find my clothes”. A.B. also acknowledged that he could not remember what he described as the “minordetails” of the night. [16] After hearing evidence in this matter, I concluded that the complainant did not consent to have sex with the accused.

I found thatbased on the evidence provided as to the quantity of alcohol she had consumed, her behaviour as described by trial witnesses (notablyvomiting on several occasions), her intoxication indicators as noted by the attending RCMP officer, and her own testimony, that N.D.was incapable of consenting to sexual activity.

I also concluded that L.I. either did not care that the complainant was not sufficientlysober to consent to sex, or was reckless as to not taking adequate steps to insure that she was capable and was consenting. [17] As stated earlier, the Crown asks that L.I. be incarcerated under the terms of a Custody/Supervision Order.

Defence believes thatthe YCJA (Youth Criminal Justice Act) sentencing principles can be met by the imposition of a sentence of Probation or alternatively, aDeferred Custody Order. [18] The first determination that must be made in this matter is whether a custodial disposition is available in this case. As the eventswhich L.I. is accounting for took place prior to the October, 2012, amendments to the YCJA, all

definitions and wording of the YCJA willbe looked at as they were prior to the amendments. [19] As L.I. has no previous record of involvement with the justice system, there are only two subsections of section 39(1) of the YCJAthat are relevant in this case. Section 39(1)(

a) says that in order for a young person to be committed to custody, the young person musthave committed a violent offence. Subsection (

d) allows committal “in exceptional cases where the young person has committed anindictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would beinconsistent with the purpose and principles set out in

section 38”. [20]

Section 38 of the YCJA sets out: the purposes of sentencing; the sentencing principles of the Act; and, factors to be considered inall sentencings under this legislation. All of those factors must be applied in reference to the general principles applicable to the YCJAwhich are found within

section 3 of that Act. [21] Section 39(1)(

a) YCJA: The Supreme Court of Canada considered the meaning of the words “violent offence” as found in section39(1)(

a) in R. v. C.D.; R. v. C.D.K. [2005] S.C.J. [22] No. 79, 2005 SCC 78. The definition adopted by the court as set out in paragraphs 17 and 70 of that decision, is: “an offence in thecommission of which a young person causes, attempts to cause or threatens to cause bodily harm”. [23] There have been many cases across Canada which have found sexual offences to be inherently violent, particularly when the victimis a child. The Ontario Court of Appeal in R. v. Stuckless (ON CA), [1998] O.J. No. 3177, said: “Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitive conduct, and represents the use of compulsion against someone who is defenceless”. [24] While in the case at bar, L.I. is only two years older than N.D., the fact remains that at the time of this event, the complainant was

only 15 years of age and emphatically defenceless. [25] The term “violent offence” is not defined in the YCJA. However, in R. v. C.D., R. v. C.D.K. (supra), the Supreme Court held thatfor an offence to be a “violent offence” within the meaning of section 39(1)(

a) YCJA, it must be an offence in which bodily harm wascaused, threatened or attempted. “Bodily harm” is defined in

section 2 of the Criminal Code as meaning “any hurt or injury to a personthat interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [26] In 1991, the Supreme Court in R. v. McCraw (SCC), [1991] 3 S.C.R. 72, held that bodily harm, including “seriousbodily harm”, may be made out through psychological injury or hurt. [27] While psychological trauma may constitute bodily harm, it is clear from the Supreme Court’s definition above, that it must be“more than merely transient or trifling in nature”. In R. v. J.K., a 2011 decision of Judge Gorin from the N.W.T.

Territorial Court 2011NWTTC 11 , [2011] N.W.T. J. No. 27, it was held “That in cases where the Crown is relying on psychological trauma to makeout the bodily harm requirement ascribed to section 39(1)(

a) by the Supreme Court of Canada, the Crown must prove this aggravatingfactor beyond a reasonable doubt” (para 11). [28] Judge Gorin rejected the suggestion that the victim had suffered the requisite harm. He said at paragraph 23: “Dealing with whether or not custody is available under s. 39(1)(

a) in the case before me, I note that the evidence of psychological hurtsuffered by the victim falls significantly short of the evidence that was present in T.F. and K.G.B. The victim impact statement consistsof two sentences. The victim said that the incident made her feel angry, shocked, disgusted, hurt, sad, and discouraged, and that itbrought down her self-esteem. Unfortunately neither the statement nor any other evidence presented describes the depth and the durationof these feelings. The threshold for “bodily harm” to be established is not particularly high.

However, on all of the evidence before me,including the facts of the offence and the victim’s description of the effect the offence has had on her, I am unable to find that bodilyharm of a physical or psychological nature occurred. Therefore I must find that s. 39(1)(

a) is not engaged.” [29] The Supreme Court in R. v. McDonnell (SCC), [1997] 1 SCR 948, held that psychological harm cannot bepresumed in cases of sexual assault. That case said that if the Crown wished to establish psychological harm as an aggravating factor,then it had to be established beyond a reasonable doubt. [30] I believe this finding is equally applicable to the elements of section 39(1))(a). A case where this extrapolation was made is R. v.T.F. (2008) 2008 NWTTC, also a decision of Judge Gorin of the N.W.T. Territorial Court. That case says: “[13] I conclude that where a young person is found guilty of sexual assault, in order for s. 39(1)(

a) of the YCJA to apply, the bodilyharm alleged by the Crown must be proved beyond a reasonable doubt. If the Crown wishes to rely on psychological harm it must provebeyond a reasonable doubt that psychological harm occurred and that the psychological harm was more than merely transitory or triflingin nature.” [31] Evidence as to any harm suffered by the victim in this case comes from her Victim Impact Statement. In that regard. N.D. said: “It didn’t take long for people to accuse me of being a liar or saying that I was faking it.

When it came to this point I have never felt soalone in my life, I still can’t sleep sometimes because of it. I feel as if he took away my confidence and replaced it with shame and that Idon’t trust anymore, just worry instead. I guess I’m still in shock because it’s just one of these things you never think will happen to you,but when it does it feels as though your world has been ripped out from underneath you”. [32] I am satisfied that the above statements establish beyond a reasonable doubt that N.D. suffered psychological harm which wasbeyond trifling or transient.

The Victim Impact Statement provided by N.D. was prepared in May of 2014. Although this report wasprepared some 21 months after the sexual assault, it would appear that her emotional state continues to be impacted. [33] Having concluded that N.D. has suffered “bodily harm”, I am accordingly satisfied that this offence is a “violent offence” as set outin section 39(1)(

a) YCJA and as such, that the court does have the power to impose a custodial sentence. SERIOUS VIOLENT OFFENCE [34] I turn now to the Crown’s request that this matter be designated a serious violent offence (SVO). [35]

Section 2 of the YCJA defines a serious violent offence as an offence in the commission of which a young person causes or attemptsto cause serious bodily harm. [36] Section 42(9) of the YCJA sets out the procedure for the designation of a serious violent offence: “On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunityto be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse theinformation or indictment accordingly”. [37] The judicial approach to an SVO application is set out in paragraph 12 of the Ontario Court of Appeal case: R. v.

V.W. 2008 ONCA55 , [2008] O.J. No. 234 (Ont. C.A.), as follows: “It is, however, submitted that the definition in

section 2 [serious violent offence] of the YCJA is intended to be relatively narrow, withthe serious violent offence being distinguished from the ordinary violent offence. The impact of such a determination on the life of ayouth may be profound and, consequently, the discretion to make such determinations should be exercised with caution”.

[38] As stated in R. v. D.(C.); R. v. K.(C.V.) 2005 SCC 78 , [2005] 3 S.C.R. 668, the Supreme Court held that a “serious violentoffence” is any offence which produces any hurt or injury, either physical or psychological, that interferes in a substantial way with thephysical or psychological integrity, health or well-being of a complainant.

In this case, Justice Bastarache stated: “I see no reason why this definition of ‘serious bodily harm’ should not also be used for purposes of the YCJA and in particular forpurposes of the definition of ‘serious violent offence’ that is found in s. 2(1) of the Act”. (para 20). [39] Clearly, the required elements to designate an offence as a “violent offence” which mandate that the harm suffered need onlyinterfere with the health and comfort of the person and be more than transient or trifling, differ from those of a “serious violent offence”which requires bodily harm that interferes in a substantial way with the victim’s physical or psychological integrity, health or well being. [40] Canadian case law has established that psychological harm cannot be implied merely from the fact of a sexual assault.

As well, it isclear that the onus to determine such harm is on the Crown to establish beyond a reasonable doubt. [41] In this case, there is no evidence to establish physical harm to N.D. The only evidence as to psychological harm results from theVictim Impact Statements (VIS) prepared by the complainant, her sister, her mother and her father. [42] As noted earlier, all of these reports were prepared in late May or early June of 2014, just prior to sentencing.

The report from thevictim, N.D., has previously been quoted in this decision. [43] Her mother, J.D., said in her VIS: “N. is not eating much and has lost weight. She has fallen behind in school and has had to drop a class. She is home in the afternoons asa result, and spends most of that time sleeping or just in her room. She is no longer the carefree girl she once was”. [44] The victim’s father, D.D., said: “I feel that a large part of N.’s normal teen age years have been destroyed. She has lost friends, her social life has been greatly affectedby this crime.

She has withdrawn from a lot of them or they vice versa. She was always a very giving person and that has greatly beendiminished. I think that she will take a long time to be over this if ever... I worry about her mental state that she has not dealt with this ina good way”. [45] In addition to the above statements, which are specific to N.D., all of the above, as well as K.D. (the victim’s sister), spoke of therift that has developed between the mother and the sister, K.D., apparently because the mother blames the older daughter for notwatching over her younger sister.

As well, all spoke about a family in crisis and depression, which they say has come about as the resultof the offence.

As N.D. is a member of this family and lives within this household, the breakdown of the family dynamic is harmsuffered by her which is attributable to this crime. [46] While it is a difficult task for any lay person to assess psychological harm, and it would have been preferable if some form ofpsychological or mental health assessment had been provided as to the victim’s well being, I am satisfied that the information from theVictim Impact Statements quoted above, combined with the circumstances of this offence, does establish that the victim in this case hassuffered psychological harm of an enduring nature that interferes with her psychological well being. [47] Accordingly, I am also satisfied the requisite elements are found in this case to make a ruling that this offence is a serious violentoffence as set out in section 42(2) of the YCJA. [48] I am also satisfied that a reading of Canadian case law confirms that a finding of serious bodily harm does not mandate adetermination of a serious violent offence.

I am satisfied that as stated in R. v. T.(A.) 2009 ONCJ 460: “The court retains a residual discretion and in exercising that discretion must focus primarily on the nature of the offence and theconsequences or potential consequences to the victims” (para 22). [49] In paragraph 21 of R. v.

D.(C.)(supra) the Supreme Court of Canada held that: “Although the definition of ‘serious violent offence’ is relatively straightforward, even if a young person’s action would appear to satisfyit – i.e. even if a young person causes or attempts to cause serious bodily harm in the course of committing an offence – it does notautomatically follow that he or she has committed a ‘serious violent offence’.

Instead, pursuant to s. 42(9) of the YCJA, the Crown mustapply to have the offence designated as a ‘serious violent Offence’, and, ...much is involved in deciding whether an offence is a ‘seriousviolent offence’ because the consequences of such a designation are quite severe.” [50] This approach was followed in R. v. M.A.H. [2013] ONCA 235, a 2013 decision of the Court of Appeal of Ontario, which said: [31] ... the focus should be on the effects of the violence rather than the means employed.

Once a youth justice court has concluded thatserious bodily harm has resulted from the young offender’s conduct, it may still decline to exercise its discretion under s. 42(9) to makethe SVO designation. In this way, the court retains its flexibility since foreseeability remains a factor to be taken into account by theyouth justice court when exercising this discretion: see R. v. E.F., 2007 ONCJ 113 , 2007 ONCJ 113, 157 C.R.R. (2d) 189, atpara. 46”. [51] In terms of the criteria employed in determining whether to make an SVO Order, it is helpful to refer to the decision in R. v.

C.(K.)[2011] [ONT.C.A.: “...the conclusion that the use of the word “may” in s.42(9) gives the court discretion concerning whether to make an SVO designationappears consistent with the twin objectives of the YCJA of reducing the over-use of custody for young persons while holding youngpersons accountable when they commit serious offences. The discretion not to make an SVO designation allows a court to achieve the

former objective when an SVO designation is unnecessary to achieve the latter”. (para 75) [52] The above statement highlights the issue in all youth sentencings. There must be a balancing between the stated objectives of Parliament as manifested within the Youth Criminal Justice Act and the requirement that the youth be held appropriately accountable forhis or her actions. [53] There is some discrepancy in case law as to what matters a judge should consider in terms of making an SVO Order once thethreshold requirements have been met. [54] In R. v.

K.C. [2007] 257 , Simmons, J.A. of the Ontario Court of Appeal, said: “[78] ...it seems to me that at least one factor a sentencing judge must consider in deciding whether to designate an offence as a seriousviolent offence is whether the consequences of an SVO designation are necessary to achieve the purposes of youth sentencing.

Depending on the circumstances of the particular case, this in turn could bring into play the whole panoply of factors relevant to youthsentencing. [79] In this case, one such factor could be whether the appellant actually foresaw that the offences in which he participated wouldlikely cause bodily harm that was more than transient or trifling. This factor is relevant because it addresses the appellant’s level ofmoral blameworthiness for the serious bodily harm caused by the offences. [80] Another such factor could be the appellant’s efforts at rehabilitation between the offence and the date of sentencing.

If, inthe end, a sentencing judge is satisfied that it is unnecessary to impose an SVO designation to achieve the purpose of holding “a youngperson accountable...through the imposition of just sanctions that have meaningful consequences”, it seems to me that it would be opento the sentencing judge to decline to make an SVO designation.” [55] The above approach, which includes an examination of the offender’s post offence conduct, was followed in E.K. (Re) [2013]ONCJ 273 No. Y120153.

At paragraph 31, Justice Deluzio said: “31 The second phase of the inquiry involves the exercise of judicial discretion in deciding whether an SVO designation is necessary tohold the young person accountable, taking into account the circumstances of the offence including the offender’s level of moralblameworthiness, the offender’s efforts at rehabilitation and his risk of reoffending and the purposes and principles of sentencing underthe Youth Criminal Justice Act. 32 In considering the circumstances of the offence, I note that sexual assault is by its nature a violent offence and E.K.’s moralblameworthiness is high taking into account the aggravating factors in this case...” [56] In the above case, which was a case of serious sexual assault by the male offender against two male children, the court declined tomake an SVO designation despite finding that the Crown had proven that the offences were violent and that they caused serious andsignificant psychological harm to the victims.

In explaining this decision, Deluzio, J. said: “I am not satisfied that a serious violent offence designation is necessary in all of these circumstances to hold E.K. accountable for hisoffending behaviour.” (para 34) [57] In that case, some of the factors considered in making the SVO determination included the nature of the offence; the fact thatbecause the offender was the children’s sometimes babysitter, he was considered to have breached the trust placed in him to watch overthe boys; the premeditated nature of the acts; the gravity of the acts, including anal penetration; and the significant age differencebetween the offender and the victims.

Also considered was the offender’s conduct after the offences. [58] In R. v. K.G.B. and S.R.B. [2005] NBCA 96, the New Brunswick Court of Appeal in making a finding that the sexual assault in thatcase was a serious violent offence, focused on the premeditated component of the act.

It was also pointed out as a further seriouslyaggravating factor that the victim was vulnerable and defenceless (para 54) and that she was restrained against her will. [59] The K.G.B. case can be differentiated from the case at bar by the following aspects: the victim had clearly indicated she was notconsenting prior to passing out, she was restrained during the assault by an accomplice who held her hands over her head, she wasphysically injured both internally and externally, and the act itself was premeditated. [60] In the Ontario case of R. v.

A.(D.) 2011 ONCJ 748, the court made an SVO designation in the case of a 17-year old sexuallyassaulting a 12-year old. The reasons given for making the designation were that the offender: “[30] ...has gained experience in sexual relations. He used that experience to groom this very young and vulnerable complainant andmanipulated her into his bedroom. He was aggressive in forcing his will on her and in overpowering her resistance to his ultimatepenetration of her. She suffered extended pain and bleeding. The defendant was indifferent then and remains unremorseful now.

Asnoted earlier, I draw an inference that the complainant has experienced trauma and borne psychological harm. [31] The bodily harm here is serious and the impact of these sorry circumstances on the physical and psychological integrity and well-being of the complainant is significant. On this evidence, I am satisfied that the prosecution has met its onus in establishing that an SVOdesignation is warranted. [32] Moreover, the circumstances of the offence and the anti-social inclination of the young offender do not favour the exercise of mydiscretion to the contrary.

The consequences of D.A.’s forceful sense of entitlement at the time of the offence, the absence of remorseand insight, his continuing lack of respect for rules and court orders and the further offences lead to that conclusion: see R. v. K.C., at paras. 79 and 80. The designation will be made”.

[61] In R. v. P.H. 2004 ONCJ 346 , [2004] O.J. No. 4509, Justice Clark of the Ontario Court of Justice, looked at explainingthe SVO designation: “12. Given the objectives of the Act, one could argue that a finding of serious violent offence must be reasonably narrow in itsapplication. It should be directed to those youths who pose the greatest threat to the physical and psychological integrity of members ofsociety. Such a finding can be onerous. The serious violent offence designation continues to exist as long as the young person’s recordexists.

It marks or stigmatizes the young person with a unique negative characteristic. It is intended to alert and thereby deter the young person from similar activity. It also creates a potential for more punitivesanctions for future offences by removing the young person’s prima facie right to be sentenced as a youth rather than as an adult.” [62] This case also dealt with the standard of proof issue: “In proving a serious violent offence, the onus is on the Crown and the standard of proof is beyond a reasonable doubt, analogous toproving aggravating facts on sentencing (R. v.

Gardiner (SCC), [1982] 68 C.C.C. (2d) 477 (at para 5)”. [63] In R.v.M.A.H.(supra), the Ontario Court of Appeal, after stating that a sentencing judge retains the discretion to not make an SVOeven after concluding that serious bodily harm has been occasioned by the event being scrutinized, endorsed the criteria for making thesecond stage determination which were initially set out in R. v. E.F. [2007] ONCJ 113, at para 46. These factors are as follows: 1. Whether the young person caused or attemped to cause “serious bodily harm”.

If this factor is not present, the Court cannot make adetermination that an offence is a serious violent offence.

If this factor is present, the Court should go on to consider others factors indeciding how to exercise its discretion under s. 42(9); 2. the degree of physical and psychological or emotional harm done to (i.e. the impact that the offence has had on) the victim and thecommunity; 3. where serious bodily harm resulted, whether such harm was reasonably foreseeable; 4. whether the victim is a vulnerable member of society; 5. whether a weapon was used in the commission of the offence and the type of weapon used; 6. the context in which the offence occurred and the way in which the offence was committed; 7. whether the offence was premeditated or predatory in nature as opposed to impulsive; 8. whether there were threats of violence; 9. whether there was gratuitous violence; 10. whether the offence involved a reckless disregard for public safety; 11. whether there was provocation and if so, whether the response to that provocation was disproportionate; 12. the mental state of the offender at the time of the offence, including issues such as his or her cognitive faculties or whether there hasbeen an ongoing and reckless pattern of conduct (but only if either of those are relevant to the state of mind of the offender at the time ofthe offence); and 13.the penalty that would be available for an adult convicted of the same offence. [47] This Court has considered, weighed and balanced the following factors in coming to a judicial determination that the Crown inthis case has proven beyond a reasonable doubt that the Aggravated Assault is a serious violent offence”. [64] As noted earlier, this case contradicts other earlier cases which indicate that the offender’s post offence conduct should beconsidered in exercising judicial discretion under section 42(9).

R. v. E.F.(supra) specifically states that the offender’s post offenceconduct should not be considered. [65] Not only did the Ontario Court of Appeal in R. v. M.A.H. (supra) support the reasoning of the sentencing judge in R. v. E.F. (supra),but their reasons seem to support the suggestion that in exercising this discretion, the focus should be on the offence and the offender’sinvolvement therein.

In this regard, the Court of Appeal said: “This designation (SVO) was amply supported by the trial judge’s findings of fact regarding the circumstances of the offence and theappellant’s conduct”. (para 32) [66] This case seems to be in conflict with the earlier decision of the same court in R. v. K.C. [2011] ONCA 257, which at paras 78 and79 said: “[78] Similarly, it seems to me that at least one factor a sentencing judge must consider in deciding whether to designate an offence as aserious violent offence is whether the consequences of an SVO designation are necessary to achieve the purposes of youth sentencing.

Depending on the circumstances of the particular case, this in turn could bring into play the whole panoply of factors relevant to youthsentencing.

[79] In this case, one such factor could be whether the appellant actually foresaw that the offences in which he participated wouldlikely cause bodily harm that was more than transient or trifling. This factor is relevant because it addresses the appellant’s level ofmoral blameworthiness for the serious bodily harm caused by the offences. [80] Another such factor could be the appellant’s efforts at rehabilitation between the offence and the date of sentencing.

If, in theend, a sentencing judge is satisfied that it is unnecessary to impose an SVO designation to achieve the purpose of holding ‘a youngperson accountable...through the imposition of just sanctions that have meaningful consequences’..., it seems to me that it would be opento the sentencing judge to decline to make an SVO designation. [see Note 7 below] (ii) The sentencing judge erred in failing to make an SVO designation”. [67] This contradiction was also noted by Judge J. M. Filice in the Alberta case of R. v. A.S.D. [2011] ABPC 218 , who set outthe factors considered in the R. v.

K.C. (supra) decision and said: “With the greatest of respect, I do not agree with the foregoing analysis. For one, I think it unnecessarily complicates the issue toconduct the hearing under s. 42(9) against the backdrop of the purpose and objectives of the YCJA. Doing so, I think, leads the Courtinto a consideration of the effect on sentencing of an SVO designation which I do not believe is a proper consideration.

Where I find theCourt’s analysis to be fundamentally problematic is in the analogy of an SVO designation to that of a dangerous offender applicationunder the Criminal Code which then leads into discussions and consideration of sentencing principles. Section 42(9) expresslyreferences “the offence” in question and not the offender. As such, I prefer the analysis undertaken in R. v. E.F. and referenced andapplied in R. v.

A.T.” [68] I am in agreement with this approach and have chosen, in exercising the judicial discretion required by the second step of thisprocess, to focus on the crime itself and not the offender’s conduct after the offence. [69] A comprehensive review of Canadian case law in youth sentencing as to the second stage discretion in determining an SVO, doesnot provide a great deal of assistance. The above quoted R. v. E.F. (supra) case and its list of criteria is one of the few comprehensiveexaminations of this question.

It is always important to keep in mind the concern expressed in the Newfoundland Court of Appeal caseof R. v. S.K.[2009] NLCA 46, which cautioned against placing too much emphasis on precedent cases in sentencing youth mattersbecause of the individualized approach required by the YCJA. [70] Nevertheless, the earlier examination in R. v. E.F. (supra) as accepted by the Ontario Court of Appeal in R. v. M.A.H. (supra) is ahelpful tool in making this determination.

Accordingly, I will look at the case at bar in regard to each of the criteria enumerated in E.F.: 1) Whether the young person caused or attempted to cause “serious bodily harm”: As indicated earlier in this decision, I have concluded that the offender by his actions did cause serious psychological harm to the victim. 2) The degree of physical and psychological or emotional harm done to (i.e. the impact that the offence has had on) the victim and thecommunity: As indicated earlier, the evidence from the various Victim Impact Statements indicates that the offences did have considerable impact onthe victim. 3) Where serious bodily harm resulted, whether such harm was reasonably foreseeable: The inherent harm in having sexual intercourse with someone who is not capable of consenting should have been obvious to theoffender.

Additionally aggravating factors in this regard would be the complainant’s age and the fact that she barely knew the offender. 4) Whether the victim is a vulnerable member of society: Arguably, when it comes to matters of a sexual nature, a 15 year old is a vulnerable member of society. 5) Whether a weapon was used: This is not applicable in this case. 6) The context in which the offence occurred and the way in which the offence was committed: I will return to this factor after looking at the balance of the list. 7) Whether the offence was premeditated or predatory in nature as opposed to impulsive: As well, I will return to this question at a later point. 8) Whether there were threats of violence: There is no evidence that there were any threats of violence. 9) Whether there was gratuitous violence:

There was no evidence of gratuitous violence. 10. Whether the offence involved a reckless disregard for public safety: This is not applicable in this case. 11. Whether there was provocation: This is also not applicable in this case. 12.

The mental state of the offender at the time of the offence, including issues such as his or her cognitive faculties or whether there has been an ongoing and reckless pattern of conduct (but only if either of those are relevant to the state of mind of the offender at the time of the offence): It is relevant in this situation that the offender was considerably intoxicated at the time of the offence. There is no evidence that the offender has been involved in any conduct of this kind preceding these events. 13 . The penalty that would be available for an adult convicted of the same offence.

As the Crown proceeded by indictment, an adult would face a maximum of ten years in jail. [ 71 ] Turning now to consideration of factor 6: “context”, and factor 7: “premeditation”, from the above list. I believe the context in this situation is important in the exercise of discretion as to whether to make an SVO designation. [ 72 ] The evidence at trial established the following facts: 1) That the 15-year old complainant was severely intoxicated to the point of being sick and passing out. She testified that she was so severely intoxicated that she was not really aware of where she was or what she was doing.

This evidence was supported by witnesses, notably the attending RCMP officer, and was accepted by the Court; 2) That the offender either knew or should have known that the complainant did not have the capacity to consent to sex.

That he did not take adequate steps to determine whether she was consenting to having sex with him; 3) That there is no evidence to suggest that the offender’s sexual assault was premeditated or that it was anything but an impulsive reaction to finding himself in a situation with a girl who was not in a position to resist his assault; 4) The evidence at trial established that the complainant was already showing signs of intoxication at the “bush party”. By the time the group returned to the party house, she vomited on her way into the house and subsequently shortly thereafter, in a washroom in the house.

She was then helped to lie down on a couch and all the other females left the house. At some point she woke up, went to a washroom to remove her contact lenses and then walked to the basement where the young men were watching a movie. She has no recollection from that point on until a later point when she found herself in a bedroom with L.P. on top of her and J.P. yelling from the doorway. [ 73 ] What the evidence at trial did not reveal is how the victim got from the basement to the bedroom. The Crown argues that she must have been carried there by the offender and as such, he is guilty of sexual predation.

I do not accept that suggestion as there was no evidence presented in this regard and therefore believe it is only speculation. There is evidence that she was ambulatory and as such, it is equally possible that she may have walked on her own to the bedroom. That does not mean that she was consenting to have sex with L.I.; it only means that in her drunken state, she may have accepted a suggestion to go there for any number of reasons. [ 74 ] This issue of proof as to the actual circumstances of the offence was before Justice D. Fraser in the Ontario case of R. v. K.P . [2004] O.J. No. 945 (OCJ) .

That case had featured similar facts to the case at bar. Justice Fraser said: “We cannot know on these facts whether the victim walked to the building where the assault took place, participated in sexual foreplay. Both parties were highly intoxicated. I must make an assumption on the facts that are most favourable to the young person before the court.

I assume that he did not carry her to the place where the assault took place but only took advantage of her after she had lost consciousness”. [ 75 ] Beyond the evidence actually heard, any thoughts as to how L.I. and the victim moved to the bedroom are only speculation. [ 76 ] Based on the testimony presented at trial, it is possible that after N.D. moved to the basement, she may have been sitting up and she may have been somewhat conversing with some of the people in the basement.

I am satisfied by the evidence at trial as to the amount of alcohol she consumed, her behaviour at the relevant times, and that she was able to walk and possibly talk. However, I do believe that if she was moving and talking, she would have been doing so in an almost automaton state; in other words, in an alcohol induced “black out”. I am also convinced that anyone talking to her would have been aware of her severe level of intoxication. But it is possible that L.I. is telling the truth as to that part of what happened (i.e. that she was sitting up and talking).

If that is the case, this makes the context of this offence less serious than if the offender had conducted a planned attack on the victim. [ 77 ] Also relevant within the assessment of the context of this event is the age of the offender and the assumption that because of his age, he has likely had limited experience with matters of a sexual nature and accordingly, may have been more likely to be unaware of the requirements of consent. He says he mistook the fact she was sitting up, talked to him and kissed him, for a willingness to have sex. He says he asked her for sex and she agreed.

I did not accept L.I.’s testimony that the victim agreed to have sex with him, or that she was capable of such consent, but as stated previously, there is no evidence as to how she got to the bedroom. While there is literally no evidence to indicate that L.I. in any way tried to determine that N.D. was consenting, I do accept that in the context of the circumstances

of these events, his crime is in taking advantage of a vulnerable victim, but not in plotting to assault her. [ 78 ] I must also take into consideration the fact that L.I. was highly intoxicated at the time of these events, and his judgment would have been severely affected by that fact. [ 79 ] As stated earlier, I am satisfied that any act of sexual intercourse with a vulnerable victim is inherently violent and that the circumstances of this case present as both violent and seriously violent as defined by the legislation and case law.

I am also satisfied that this offence has resulted in serious harm to the complainant. Nevertheless, taking into consideration the factors set out above and most significantly the context of this offence and the impulsive nature of the offender’s actions, I am not satisfied that the Crown has established beyond a reasonable doubt that this is a serious violent offence as designated in section 42(9) of the YCJA . [ 80 ] Having come to this conclusion, I am not prepared to make a section 42(9) designation. [ 81 ] The Court must now consider the appropriate sentence.

In doing so, the Court must be guided by the YCJA sentencing principles as set out in

section 38 of the YCJA . [ 82 ] Section 38(2)(

e) of the YCJA states: 38.

(1) Purpose – The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) Sentencing Principles – A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgment of the harm done to victims and the community.

(3) Factors to be considered – In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 83 ] Having looked at the principles of sentencing in

section 38 of the YCJA and also mindful of the broader principles of sentencing set out in

section 3 of this legislation, it is helpful to look at general pronouncements as to youth sentencing from a variety of Canadian courts. [ 84 ] The Supreme Court of Canada in R. v. C.D . [2003] S.C.J. 279 , concluded that the YCJA is aimed at restricting the use of custody for young offenders and that the method of determining an appropriate sentence under the youth legislation is not the same as it is for adults pursuant to the Criminal Code of Canada . [ 85 ] In R. v. D.N.J.S ., a 2013 decision of the BC Court of Appeal (379 at para 29), Mme. J.

Garson said: “Accountability is concerned with the severity of the sentence in relationship to the seriousness of the offence... holding a young person accountable must be understood in the context of considering whether the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society”.

[86] The Manitoba Court of Appeal in R. v. Z. (A.A.) [2013] MBCA 33 at para 64, said: “Although the principles of rehabilitation and the restriction of custodial sentences are of great importance in sentencing under the YCJA,there will be circumstances where the seriousness of the offence will cause accountability and meaningful consequences to be thedominant principles”. [87] After examination of the sentencing principles in

section 38 YCJA, the Supreme Court of Canada in R. v. B.W.P. and R. v. B.V.N.2006 SCC 27 , [2006] 1 SCR 941 at para 30, Justice Charron said: “I am unable to find these provisions a basis for imposing a harsher sanction than would otherwise be called for to deter others fromcommitting crime. Rather, as I will explain, the focus throughout remains on the young person before the court”. (underliningemphasis mine) [88] This focus on the young offender is evidenced in the Manitoba Court of Appeal decision in R. v.

K.(K.O.) [2001] MBCA 57,wherein a young offender (under the Y.O.A.) who had sex with a 12-year old, had his five month open custody sentence reduced to timeserved by the appeal court on the basis that: “... the appellant’s rehabilitation will be society’s greatest protection against further criminal behaviour”. (para 49) [89] In R. v.

K.O. [2012] NLCA 55, a case of sexual assault by a 15 year old against a 12 year old, the Newfoundland Court of Appealrefused to overturn a sentence of two years of Probation, saying: “[65] For this Court to intervene and impose a custodial sentence, in the circumstances of this case, would, as counsel for K.O. asserts,be tantamount to making a custodial sentence mandatory for sexual assault in the case of a youthful first offender.

Such a decisionwould be inconsistent with the clear direction expressed by Parliament in the YCJA”. [90] With these sentencing considerations and the principles of sentencing in mind, I now note the aggravating and mitigatingcircumstances of this case. [91] The aggravating factors are: The circumstances of a sexual assault are serious. The actions of this accused are concerning. L.I. acted solely in his own interests withno regard for the interests of his victim. It goes without saying that sexual penetration of a person who is incapable of consenting is anextreme violation.

The offender either knew or should have known that the victim was in an extremely vulnerable condition. She hadvomited several times and her intoxicated condition must have been obvious to him and to his friends. [92] I have also considered the mitigating factors, which are: 1. L.I. was only 17 years of age when this event took place and he has no previous record of involvement with the criminal justicesystem; 2. Although sexual intercourse without consent is inherently violent, there is no evidence of extraneous violence in this crime; 3. The material filed in the PSR speaks well of L.I.’s antecedents.

His actions which led to the charge before the court represented anextreme fall from grace for a young person who excelled athletically. He was thought of highly by his parents and seems to haveoccupied a well regarded place within his family and his community; 4. With respect to the PSR, L.I. is considered a low risk to re-offend. L.I. has expressed his remorse and feels depressed as a result of hisactions; 5. He has a supportive family and a network in the community that will assist him in moving forward; and 6.

He has been compliant with all bail conditions, except for a recent relatively minor breach dealt with earlier today. PRINCIPLES OF SENTENCING [93] While all the sentencing principles set out in

section 38 of the YCJA must be considered, I wish to comment as to the particularapplicability of several of these principles to this case. [94] Section 38(1) says: Purpose – The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offencethrough the imposition of just sanctions that have meaningful consequences for the young person and that promote his or herrehabilitation and reintegration into society, thereby contributing to the long term protection of the public. [95] Section 38(2)(

c) says: The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for thatoffence. [96] In this case, the offence is serious. The victim has been sexually violated. Her discretion to regulate this intimate activity wastaken from her. Her Victim Impact Statement illustrates the emotional, physical and psychological harm she has suffered. [97] L.I. is directly responsible for the harm occasioned to N.D.

[ 98 ] Section 38(2)(

d) says: All available sanctions other than custody that are reasonable in the Circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons. [ 99 ] In this case, L.I. is an aboriginal person from Iqaluit, Nunavut. The material provided in the PSR indicates that he comes from a supportive, stable family. As well, that report says that the young person does know his traditional language and follows certain cultural traditions.

All reports also indicate that he was raised in a stable environment and that alcohol was not an issue in his home. [ 100 ] Despite this apparently sober upbringing, alcohol is an issue in this case, as even his counsel portrayed L.I. as being “heavily drunk” at the time of this offence.

While Gladue considerations in this case are not as significant as they would have been if his childhood was not as stable and satisfying to him as he says it was, there are nevertheless issues around alcohol abuse at the time of the offence as well as the possibility that coming from a perhaps more isolated situation in Nunavut, L.I. was not as familiar with social interaction and sexual mores as he would have been if he had grown up in a less isolated situation. [ 101 ] I have taken these factors into consideration in making this decision. [ 102 ] Referring back to section 38(2)(b), which requires sentencing judges to consider non-custodial options first.

The only reasonable potential sanction other than incarceration in this situation, would be an Order of Probation. In assessing whether this disposition would adequately comply with the YCJA sentencing principles, it is helpful to also consider section 38(2)(b) , which says: The sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances. [ 103 ] To that end, what follows is an examination of cases provided by the Crown and Defence counsel, as well as other relevant cases. CASES PROVIDED BY CROWN COUNSEL [ 104 ] R. v.

K.G.B . (supra): This case has previously been discussed in this decision. While the New Brunswick Court of Appeal sentenced both co-accused to periods of incarceration, this case can be distinguished as it was a premeditated crime which included physical restraint and resulted in significant internal and external physical injury to the victim. [ 105 ] R. v. K.(K.O.) [2001] MBCA 57 : In this case, the 14 year old offender had sexual intercourse with a 12 year old victim. The offender was sentenced to five months of open custody.

That sentence was reduced to the three months that the offender had served at the time of the appeal and the court noted that the sentence overly emphasized the sentencing principles of denunciation and deterrence and there was little or no emphasis on rehabilitation. Additionally, the offender had taken $40.00 from the complainant and had coerced her into coming to his house.

According to the complainant, “the only way I could get my money back is if I gave him a blow job”. (para 2) As such, this case is different than the matter before the court, as arguably the offender had planned a sexual assault on his victim. [ 106 ] The Crown also referenced the Newfoundland Provincial Court decision of R. v. T.L.H . [2002] CanLii 23569 (NLPC) , wherein a 17 year old offender was sentenced to nine months of secure custody for two sex assaults against a 16 year old victim.

In both incidents, the victim had clearly said no, force was used and in the second situation, she was over-powered and restrained by T.L.H. The offender in that case had been previously convicted of Assault with a Weapon and was on Probation at the time of the subsequent sexual assaults. Additionally, the victim was a lifetime friend of the offender, he was considerably larger physically than his victim and she had clearly indicated her lack of consent.

The facts of the second incident were summarized by the sentencing Judge in paragraph 5: “H. sexually assaulted B. by touching her breasts; by undoing her belt and trying to touch her vagina; by ejaculating on her stomach; by licking the semen off of her and by placing his penis close to her face, all the while holding her down”. [ 107 ] The Crown also referred to R. v. J. R ., a 2005 decision of the Provincial Court of Saskatchewan [2005] SKPC 48 . This was an act of full sexual intercourse by a 15 year old offender with a 12 year old victim.

The offender was in breach of a court Order at the time of the offence and after being charged and released, subsequently breached Probation and failed to appear in court. The offender also had a previous youth record. In rejecting a joint recommendation for a non-custodial sentence, Judge Robinson placed heavy emphasis on the facts that the victim was 12 years old and that the victim was “under the influence of alcohol at the time of the sexual assault.

This would have made her even more vulnerable than she normally would be as a 12 year old girl”. (para 13) [ 108 ] The offender was sentenced to a Custody and Supervision Order which included four months of open custody and two months of supervision. Additionally, he had also been in remand custody for 49 days. [ 109 ] R. v. D.M . [1998] CanLII 18044 (NLCA) : In this case, a 16 year old had non-consensual sex with his 13 year old niece in her home. He was given a sentence of one year of closed custody.

The case report does not detail the facts of the case, but it is clear from the decision of the Court of Appeal that in determining sentence, they placed emphasis on the fact that the offender had a record of previous convictions. [ 110 ] Similarly, the Crown argues the relevance of R. v. T.(A.) [2001] MBCA 195 , wherein a 17 year old had sexual intercourse with a 13 year old and received a custodial sentence of 12 months in addition to having served six months prior to sentencing.

This case can be differentiated from the case before the court in that at the time of his arrest on the day of the assault, T.(A.) had a butcher knife concealed on his person. As well, the offender, who was part of a gang, had a previous record, was caught carrying a weapon while on Probation at the time of the offence, and the offender showed no empathy to the victim.

[ 111 ] The Crown also refers to the Youth Justice Court of the North West Territories case of R. v. T.F . [2008] NWTTC 11 , wherein a 14 year old offender was given 240 days of custody for two counts of sexual assault against a 13 year old victim. In that case, other than the statement “T.F. raped his 13 year old victim on two separate occasions” (para 31), there is no reference to the actual facts of the case. As such, the precedent value of this case is reduced other than to note that the victim was only 13 years old. [ 112 ] Finally, the Crown referenced R. v.

J.P.W . [2010] BC PC 36 , another case which ordered custody. In that case, the sexual assault included physical violence and the victim was internally and externally injured. Additionally, prior to the offence, the perpetrator had a prior youth record for property offences, mischief and breaching court Orders. CASES PROVIDED BY DEFENCE COUNSEL [ 113 ] R. v. O.(K.) 2011 Carswell Nfld 316 (NLPC) : In this case, a 14 year old boy was given a two year sentence of Probation for sex with a 12 year old girl.

The judge in that case made the decision in favour of a Probation Order despite the fact that the sexual intercourse was accompanied by force and threats. In ordering Probation, he made the decision with primary emphasis on the offender: “I conclude that a non-custodial sentence, while lenient, is the form of sentence which is most likely to promote K.O.’s long term rehabilitation.

I conclude that the principles of sentencing in the YCJA , particularly the requirement for resort to non-custodial sentences when reasonable and the requirement for emphasis to be placed upon rehabilitation, strongly supports the imposition of a non-custodial sentence in this case”. (para 27) [ 114 ] Arguably, this case is markedly different than the case at bar, in that the victim was 12 years old and the 15 year old offender’s mental functioning was described as being in “the extremely low range”. [ 115 ] R. v.

B.(C.) [2010] ON CJ 140 : In this case, the 16 year old offender plead guilty to masturbating two victims aged nine and ten and on a separate occasion, performing oral sex on one of the victims. On at least one of the occasions, the offender videotaped the activity. It was also considered to be an aggravating factor that the offender was in a position of trust to the victims. The judge in that case decided that Probation would adequately hold him accountable.

In doing so, he emphasised the support available to the offender from his family and that since being charged, the offender had taken steps towards rehabilitation. [ 116 ] R. v. B.(A.A.) [2004] MB PC 2004 Carswell 585 : The offender was between the ages of 15 and 17 when he sexually assaulted a child who was between four and seven years of age.

The acts included oral sex and simulated sex six times over three years. [ 117 ] In rejecting a custodial sentence, Judge Devine emphasized that as this was the offender’s first offence and as such, he had not previously had the benefit of rehabilitative support. [ 118 ] Once again, the precedential value of this case is somewhat lost in that this offender had severe cognitive limitations and although in grade nine, was functioning at best at a grade four level.

CONCLUSION [ 119 ] Suffice to say that there are cases from Canadian courts that have determined that custody is required in cases of sexual assaults by first offenders and there are cases which have determined that custody is not necessary to hold a young offender accountable.

As is normally the case as to sentencing, the ultimate disposition generally depends on the facts of the particular case and the circumstances of the offender. [ 120 ] As stated earlier, both the Manitoba Courts and the Supreme Court of Canada, have made it clear that the primary focus in the YCJA is on the circumstances of the young offender and on rehabilitation. [ 121 ] I accept that the primary sentencing principle under the YCJA is rehabilitation.

If all the other relevant sentencing principles can be satisfied by a disposition without incarceration, then a non-jail sentence is what must be imposed. [ 122 ] In assessing what is a fit sentence in this case, it is appropriate to consider the aggravating and mitigating factors. [ 123 ] As discussed earlier in this decision, I am satisfied that this is a case where the context of the situation is quite important. In this case, there was no pre-meditation and no additional violence other than the violence inherent in any sexual assault.

Defence counsel for L.I. argued that: “Most adolescents are not aware of legal issues, and may not understand what the legal restrictions are for consent. How drunk is too drunk to consent? Legally, there is no clear answer, and the area is rife with changing jurisprudence and legislation (Bill C-22).

The line between sexual assault and drunken sex can be very difficult to draw, especially when the individual is a youth with no previous involvement or knowledge of legal consent.” [ 124 ] While I do not accept this argument as to the issue of consent or guilt as to the charge itself, I do believe it has some merit as to describing the context of the circumstances of this case. [ 125 ] Once again turning to the sentencing principles, the disposition in this matter must be proportionate to the seriousness of the offence and the responsibility of the young person. [ 126 ] Having already determined that pursuant to section 39(1)(

a) YCJA , this court has jurisdiction to order a custodial sentence, I am

satisfied that the nature of the offence in this case is so serious that anything short of a custodial sentence would not be proportionate toits seriousness and would not meet the requirements of the principle of sentencing in section 38(2)(

c) of the YCJA, and the otherprinciples of sentencing in sections 3 and 38 of the legislation. [127] As required by section 38(2)(e), the Court is required to determine what the least restrictive sentence is that is capable of achievingaccountability mindful of the other sentencing considerations, such as rehabilitation of the offender and the long-term protection of thepublic. [128] In that I have determined that a sentence of incarceration is mandated in this case and mindful of section 38(2)(

e) YCJA, I mustconsider the available sentence option of a Deferred Custody and Supervision Order as set out in section 42(2)(

p) YCJA, which wouldappear to be the least restrictive of available incarceratory sentences. [129] The obvious advantage of this form of Custodial Order is that it allows the young person to continue to function in society, therebyhopefully enhancing his or her chances for both rehabilitation and re-integration. Additionally, as stated in the guide book “A Guide tothe Youth Criminal Justice Act”, by Lee Tustin and Robert Lutes at page 105: “This order is also used to recognize positive steps a young person may have taken in their life since the commission of the offence aswas the case in R. v.

C.W. 2007 ONCJ 587 , [2007] O.J. No. 4929, LYCJ 2008/-025 (C.J.) when Justice M.H. Bloomenfeld ofthe Ontario Court of Justice imposed a deferred custody and order after considering positive references from probation and family,C.W.‘s expressions of remorse and steps C.W. had taken to change his life. In the case of R. v. A.W. [2009] O.J.

No. 5777, LYCJ/2010-036 (C.J.) although there were multiple offences that stemmed frombringing a loaded gun to school, the Court acknowledged the young person had accepted responsibility and was a good candidate forrehabilitation and sentenced A.B. to six months deferred custody and supervision order followed by 23 months of probation”. [130] In this case, the PSR makes several positive references to L.I.’s current situation.

They include: - That when at his home in Iqaluit, he is employed in construction, building houses on the tundra with his brother-in-law; - That he has a relationship with a romantic partner and that this relationship has lasted for a year; - That he has “many positive friends...none are involved with the law”; - That he has not consumed alcohol in the last six months and is prepared to complete an addiction assessment; - That when speaking to the Probation Officer who prepared the Pre-Sentence Report, he told her that he “understands his thinkingand behaviour were inappropriate” at the time of the offence; - Additionally, he told the Probation Officer who prepared the report that he felt remorseful about this matter and is depressed aboutit. [131] It is also noteworthy that the PSR STATIC-99 (a testing tool frequently used by Probation Services to predict the likelihood ofoffenders becoming re-involved in criminal matters) done for the preparation of the PSR, scores L.I. as a low risk to re-offend.

I believethis assessment is appropriate, particularly in light of the positive features from the PSR above enumerated and the mitigating factorspreviously listed. [132] It is also noteworthy that the PSR describes Iqaluit as having many available resources and programs. Further, the report indicatesthat L.I. has the support of his family and that he has shown a willingness to participate in an addiction assessment.

I believe it isreasonable to assume that his supportive family will assist him in accessing appropriate supports while under Court Orders. [133] In assessing the overall circumstances of this offence and this offender, being particularly mindful of section 38(3) YCJA whichsets out factors to be considered, and coupled with the aggravating and mitigating circumstances, I am satisfied that a Deferred CustodyOrder is capable of providing meaningful consequences for L.I.’s actions, will hold him accountable and will also contribute to the longterm protection of the public by promoting his rehabilitation. [134] I do not believe that a custodial sentence which would remove this young man from his community and place him in any form ofreformatory or actual custodial situation, would be in either his best interests or the best interests of the community. [135] Accordingly, L.I. will be sentenced to six months of deferred custody to include the statutory conditions from section 105(2)YCJA, as well as the following conditions: - He is to attend and participate in counselling at the direction of his youth Probation Officer, including but not limited to sex offendertreatment, therapy and counselling; - He is to abstain absolutely from the possession or consumption of alcohol and/or drugs (unless medically prescribed); - He is not to attend anywhere alcohol is sold or being consumed with the exception of licensed restaurants, but therein only for thepurpose of consuming food; - He is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition,prohibited ammunition or explosive substance; - He is not to have contact, directly or indirectly, with N.D.;

- He is not to attend within 100 metres of the home, school, workplace or place of worship of N.D.; - He is to maintain a fixed address and is not to move without obtaining permission of the court; - He is to apologize to N.D. as directed by his sentence supervisor; - He is to be present at his home, every day of the week, from 7:00 p.m. to 6:00 a.m. unless remunerative work or medical reasons (including his participation in therapy for sexual offenders) oblige him to be present. A further exception will be permitted in the case of a medical emergency involving himself or anyone he lives with.

As well, he will be excepted from his curfew restrictions to enable him to go to and participate in hockey games and practises of the OCN Blizzard and/or OCN Storm hockey teams, but only in The Pas or on OCN. Any other exceptions must be authorized in writing by his sentence supervisor. [ 136 ] The Deferred Custody Order will be followed by a consecutive period of Probation for 18 months.

All of the above conditions will be included in the Probation Order except the apology requirement , which should be completed within the deferred period, and the clause which requires that L.I. abide by a curfew provision will reflect that his curfew will be changed to 10:00 p.m. to 7:00 a.m. with the same exceptions. [ 137 ] The Probation Order will include the following clause: - He is to perform 100 hours of community service work. The work is to commence within 30 days of his release and he shall perform no less than eight hours per month in consecutive months until the community service work is completed.

He shall provide written proof of completion of the community service work hours to his youth Probation Officer, and he shall complete the community service work within the first 15 months of his Probation Order; [ 138 ] There will be a DNA Order. This is a primary designated offence. L.I. will be required to attend at any RCMP detachment within 21 days to provide a suitable sample for the DNA data bank registry. [ 139 ] Additionally, there will be a two year Weapons Prohibition pursuant to section 51(1) YCJA and

section 109 of The Criminal Code . “Original Signed by” L. Allen, P.J.