2017 MBPC 23, 2017 MBPC 23

Citation: 2017 MBPC 23 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Shauna Silver, for the Crown ) - and - ) ) B.S. ) Eric Wach, for the Accused ) ) Judgment delivered: ) May 19, 2017 RESTRICTION ON PUBLICATION : No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act. See the Youth Criminal Justice Act, s. 110(1). CORRIN , P.J. [ 1 ] On August 8, 2015 the 17 year old accused, B.S., sexually assaulted the female victim, a person he knew from work, while she was sleeping at the home of a mutual friend.

The assault involved sexual intercourse which was perpetrated while she was asleep. The incident ended when the victim awakened and realizing what was going on, told B.S. to stop what he was doing and get off of her. B.S. pled guilty to the offence of sexual assault pursuant to

section 271 of the Criminal Code . The accused, as well as witnesses present in the residence, described the young offender as having been extremely intoxicated – so much so that the accused claims to have no memory of the actual offence. Court was told that he subsequently complied with a police DNA test which confirmed the allegation, resulting in his guilty plea. [ 2 ] The accused, now 19 years old, has no prior criminal record.

Court was told that the incident was seemingly out of character and caused the accused to become self-loathing and depressed, to the extent that he has suffered suicidal ideations in reference to his criminal misbehaviour. When interviewed for his pre-sentence report he fully acknowledged awareness of how his actions had affected his victim, expressing seemingly sincere remorse for the victim as well as significant guilt and regret for his involvement.

Prior to this incident B.S. was described as being “an active and engaged youth” who was involved in pro-social activities within his northern indigenous community. Such involvements included competitive level soccer and junior hockey. The vice-principal of his former high school referred to B.S. as a student who always got along with both peers and teachers, as a student who “never had any issues at school”, one who socialized with what she described as a “healthy crowd” of positive friends and was heavily involved in extra-curricular sports activities including soccer with Team Manitoba.

Another vice-principal described B.S. as being very quiet and shy but overall “a super nice kid.” [ 3 ] After the incident, the accused was bullied, threatened and on one occasion physically assaulted in a retributive home invasion led by the victim’s boyfriend. Due to the peer ostracization and intimidation the parents gave up their employment and moved the family to Winnipeg to secure the accused’s safety. The relocation has subjected the entire family to considerable stress and financial loss. Only one of his parents, his mother, has been able to find employment to this point.

As well, all of the members of the family have had to sacrifice relationships with both friends and close family as a result of the relocation. The accused, having now graduated from high school in Winnipeg, has taken full time work with a large furniture store in the city. He was assessed by Corrections to be a “very low risk to re-offend.” As such he was evaluated as a “suitable candidate for a community based disposition” by the probation officer who authored the pre-sentence report. A similar opinion was also expressed by Dr. D.

Chubaty, the author of a six page forensic assessment which was also before the Court. Crown counsel did not recommend such a disposition – she has asked the Court to impose a conventional custodial order of five months – two-thirds open custody and one third community supervision. Defence counsel argued for a non-custodial community based disposition but requested a deferred custodial and supervision sentence if the Court concluded that custody was necessary. [ 4 ] Counsel both agree that the offence before the court is a violent offence as defined by Youth Criminal Justice Act ( YCJA ) case law.

There is recognition by the defence that the victim, as she and her parents have described in their respective victim impact statements, has suffered serious psychological and emotional harm as a consequence of the incident, harm which was more than merely transient or trifling in nature. The Court concurs with counsel that this offence is therefore a violent offence as described in section 39(1) (

a) of the YCJA and as such the Court does have the power to impose a custodial sentence as such a finding does open the legal gateway to a custodial sentence as one sentencing option. With that in mind, the Crown further submitted that the Court was precluded from imposing a deferred custodial sentence as provided by section 42(2)(

p) and section 42(5) because in its submission the offence in question involved the causation of serious bodily harm – averring to the serious psychological and emotional impacts of the offence upon

the victim. No professional psychological or psychiatric reports were filed by the Crown in support of its argument. It only relied on thetwo filed victim impact statements in such respect. [5] As defence observed, because the young offender pled guilty to a charge of sexual assault pursuant to

section 271 of theCriminal Code and not aggravated sexual assault pursuant to

section 273, a deferred sentence of custody is not precluded as a custodialdisposition. However, the Court agrees with the Crown that a deferred custody and supervision order may be precluded pursuant tosection 42(5)(

a) of the YCJA if the young offender in committing the sexual assault caused or attempted to cause the victim “seriousbodily harm.” The phrase “serious bodily harm” is not defined in either the YCJA or the Criminal Code. I believe that the

interpretationof such phrase by the Supreme Court of Canada in R. v.

D.(C.) 2005 SCC 78 in relation to the original enacted version of the YCJAshould also apply to the post 2012 amendment version of the Act: “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical orpsychological integrity, health or well-being of the complainant.” I see no reason why this definition of “serious bodily harm” should notalso be used for purposes of the YCJA, and, in particular, for purposes of the definition of “serious violent offence” that is found in s.2(1)of the Act. (see paragraph 20) (underlining mine) [6] It is noteworthy that although the 2012 amendments to the YCJA abolish the process for designation of offences as seriousviolent offences, the amendments still preclude the use of deferred custody for a young offender who has caused or attempted to causeserious bodily harm.

It therefore makes sense that serious bodily harm in the jurisprudential context of the serious violent offence shouldremain the basis for determination of a decision in respect of section 42(5)(a). I concur with the reasoning of my colleague Allen, J. in R.v. I.(L.) 2014 MBPC 59 in respect to how such a determination should be made i.e. how one should determine the serious bodily harmissue. [7] The Court is accordingly of the view that the criteria set out by the Ontario Court of Justice in R. v.

F.(E.) 2007 ONCJ, 113 areappropriate factors to consider in reference to whether an offender has caused or attempted to cause serious bodily harm in a physical orpsychological context. [8] I therefore begin by rhetorically asking myself whether the young person by his actions did in fact actually cause seriouspsychological harm to the victim. As indicated earlier herein, there is general agreement that such was the case from the perspective ofthe victim and her parents.

However, their victim impact statements make no such mention of any specific diagnosed psychologicaldisorders, disabilities or other infirmities that have been connected to the assault by treating professionals. Indeed, the only mention oftreatment was a general reference in the victim’s statement to counselling she received to help her contend with understandable post-offence feelings of violation and fear. I am of the view that standing alone, the victim’s evidence of psychological harm fails to meet theobjective standard necessary to support a finding of serious psychological harm.

In other words, although there is ample evidence ofgeneral traumatisation suffered by the victim, there is no clinical psychological evidence that same has left her with pathological, long-term treatable or untreatable psychological harm. The Court again observes and emphasizes that it did not even receive a report from thePrimary Health counsellor who provided post-trauma service to the victim in such respect.

The Court is of the view that it is unqualifiedto make a diagnostic assessment of serious psychological harm absent the guidance and opinion of a qualified clinical psychologicalexpert – obviously someone with appropriate accreditation in the diagnosis of psychological disorders and therapy, perhaps even aclinical psychologist who has recognized expertise in the field of forensic psychology. [9] As such, the leading case on the admissibility of expert evidence in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9,sheds some light on the court’s aforementioned predicament.

At paragraph 17, Sopinka J. states that admission of expert evidencedepends upon the application of four criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionaryrule; and (

d) a properly qualified expert. [10] The second criterion considered by Sopinka J., whether or not the expert evidence was necessary to assist the trier of fact, is ofspecial concern at this sentencing hearing, because the Crown is arguing that a deferred sentence is not available because the offenceinvolved the causation of serious psychological harm. After citing the decision of Dickson, J., as he then was in R. v.

Abbey, (SCC), [1982], 2 S.C.R. 24, Sopinka J., referring to the assisting of the trier of fact as being a “pre-condition” to admissibility ofexpert evidence said, at paragraph 22 of Mohan, supra: This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word “helpful” is notquite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard.

What is required is that theopinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge orjury”: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact toappreciate the matters in issue due to their technical nature. In Kelliher (Village of) v.

Smith, (SCC), [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible,“[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted bypersons with special knowledge”… [11] So while there is always a concern that experts not be permitted to usurp the function of the trier of fact, that concern does notpertain when a subject matter is clearly not one that an ordinary person could form a correct judgment about if unassisted by aprofessional who possesses special knowledge about the subject matter.

As previously mentioned it is the court’s view that such is thecase here and I accordingly decline to render an uninformed opinion respecting the subject matter as to do so would in my viewcompromise the sentencing principles of the YCJA. (see discussion of same at paragraph 15 hereunder). [12] As to whether the young offender attempted to cause the victim serious bodily harm in the psychological sense of suchphraseology, all the evidence seems to support a conclusion that the offender was in a highly inebriated state at the time of the offence, astate of intoxication which according to him, not only effected his normal personal control of sexual impulses but also caused an inabilityto recall the incident itself.

The Crown called no evidence to challenge such assertion. The Court is of the view that it must have done so

if it wished the Court to disregard the young offender’s “mitigating” version of events as R. v. Gardiner (1982) (SCC),68 C.C.C. (2d) 477, paragraph 5, pertains to such situations i.e. the onus of proof is on the Crown to prove an aggravating fact that iscontested by an accused person. The Court might not have come to such a conclusion had the sexual assault involved any gratuitousviolence or threats of same.

Proof of a related history of violence or premeditation might also have informed my ultimate conclusion insuch respect. [13] While the Court acknowledges that any act of sexual intercourse with a vulnerable sleeping victim is inherently violent, I am,for the aforementioned reasons, not satisfied that the Crown has proven beyond a reasonable doubt that this offence caused serious bodilyharm as that term is described in the relevant jurisprudence. As such, I conclude that the Court retains the jurisdiction to impose adeferred custody and supervision order in reference to section 42(5)(

a) of the YCJA. [14] I therefore must now turn my attention to section 42(5)(

b) of the YCJA as such provision makes clear that such an order is onlyavailable if a custodial sentence can be imposed under section 39(1) of the Act. Section 39(1) of the YCJA establishes four possiblegateways to a custodial sentence. Only two are relevant in the circumstances of this case. One of those, the commission of a violentoffence has already been dealt with herein. As previously mentioned, both parties concur that such a designation pertains to this offenceso the gateway to a custodial sentence is open.

The Court also agrees with the Crown, for the reasons that follow herein, that if it werenecessary to decide whether this is an exceptional case pursuant to section 39(1)(d), that the aggravating circumstances of the offence aresuch that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38 of the Act. [15] The Court must now consider the appropriate sentence. In doing so I must be guided by all the relevant provisions of the YCJA.Section 3 of the YCJA establishes a special system of criminal justice for young persons. The following are of particular significance asthey relate to the sentencing of B.S.: 3

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address thecircumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminishedmoral blameworthiness or culpability and must emphasize the following: [emphasis added] (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level ofmaturity, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve theparents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young personswith special requirements; and (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in theprocesses, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of theirrights and freedoms,

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out insubsection (1). Section 39(2) states that if any of 39(1)(

a) to (

c) apply, no custodial sentence shall be imposed unless the Court has considered allalternatives raised at the sentencing hearing that are reasonable in the circumstances and determined no reasonable alternative that wouldfulfill

section 38 purpose and principles. The alternative of community based disposition and probation were raised at the sentencing hearing through the recommendations of theauthors of the Pre-Sentence Report and the psychological report. Even if the Court finds that custody is an available sentence undersection 39(1)(a), it must consider whether probation presents a reasonable alternative to custody that would fulfill the sentencing

principles set out in

section 38. Section 39(3) Whether There is a Reasonable Alternative to Custody In determining whether there is a reasonable alternative to custody, the Court shall consider submissions relating to:

a) The alternatives to custody that are available;

b) The likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences;

Section 38 of the YCJA states:

(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 and 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; (

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. [ 16 ] In this case the offence is serious, an adult could receive a maximum sentence of 10 years for same. The minimum sentence, because this incident constituted a major sexual assault would likely be somewhere between two and three years incarceration. It is therefore my conclusion that a custodial community based disposition presents as the least restrictive option capable of fulfilling all the requirements of section 38(2)(e).

My reasoning in such respect is informed as well by the fact that appropriate offence specific treatment is readily available in the community and would not require traditional incarceration to accomplish.

I do not believe that a sentence which would remove B.S. from the community would be in either his or the long term interests of the community. [ 17 ] Taking into consideration all the circumstances of the offence, including aggravating and mitigating circumstances, the offender, and the principles of sentencing set out in the YCJA , I find that a meaningful consequence which will promote the young person’s rehabilitation is a sentence of six months deferred custody and supervision followed by 12 months of supervised probation.

The terms of deferred custody, over and above those described in section 105(2) of the YCJA are to be as follows: • He is to attend and participate in a psychiatric assessment and subsequent counselling at the direction of his youth Probation Officer, including but not limited to sex offender treatment, 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 the purpose 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 the victim; • He is not to attend within 100 metres of the home, school, workplace or place of worship of the victim; • He is not to move without obtaining permission of his supervisor or the court; • He is to be present at his home, every day of the week, from 8:00 p.m. to 6:00 a.m. unless he is absent in the case of a medical emergency involving himself or anyone he lives with. [ 18 ] The Deferred Custody Order will be followed by a consecutive period of supervised probation for 12 months.

All of the above conditions will be included in the Probation Order except the clause which requires that B.S. abide by a curfew provision. [ 19 ] The Probation Order will also include the following clause: • He is to perform 100 hours of community service work prior to the last month of probation. [ 20 ] There will also be a DNA order. He is to provide such sample within 30 days from today. [ 21 ] There will also be a two year Weapons Prohibition pursuant to section 51(1) of the YCJA. “Original signed by:” Judge Brian Corrin