R. v. H.(D.), 2014 ONCJ 254

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Y132108 Date: May 20, 2014. Citation: R. v. H.(D.) , 2014 ONCJ 254 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — D. H. a young person Before Justice M.L. Cohen Ruling Ms. Jody Milstein.................................................................................................. for the Crown Mr. J. Rabinovitch...................................................................... counsel for the accused H. D.

Cohen, J.: [ 1 ] On February 20, 2014, I found DH guilty after trial of one count of sexual assault and two counts of sexual interference. The assaults occurred over a period of five years between 1997 and 2002. The victim was six years of age when the assaults began, and eleven when they ceased. DH was thirteen at the outset, and eighteen at the conclusion. The assaults stopped after the victim disclosed the abuse to her mother, who then confronted DH with the disclosure. The victim is now twenty-two, and DH is thirty.

The complainant did not report the abuse to the police until December, 2011. [ 2 ] DH is the victim’s paternal cousin. From the time the victim was an infant, she regularly spent weekends at DH’s home, where her father, although rarely present, resided. The victim’s mother worked on the weekends, and DH’s mother and paternal grandmother looked after her during those periods. The victim testified that she regularly slept in DH’s bedroom and in his bed. [ 3 ] I accepted the victim’s evidence of a continuous and prolonged pattern of sexual abuse by the DH.

The sexual abuse included repeated acts of French kissing, touching the victim’s vagina, cunnilingus, analingus, fellatio, and a failed attempt at penetration. Some of these sexual acts were experienced by the victim as particularly degrading, as will be evident from a review of the transcript of the proceeding. The victim testified that she “kept it all bottled up” and “never told anybody” about the abuse until she was eleven, when she informed her mother. The complainant was slow to disclose, and then to report the abuse, because she was embarrassed and disgusted.

She was a child, but it was evident from her testimony that she directed her feelings of disgust and embarrassment inward, towards herself. She has not been able to free herself from these confused and disturbing emotions. [ 4 ] There was considerable evidence from the victim and her mother about the victim’s many behavioural problems over the years the abuse was occurring, including persistent anger, defecating in her underwear, smearing her feces, and sexual acting out. During her testimony, the victim was highly emotional and volatile.

She repeatedly shouted at DH, and his mother who was sitting in the courtroom, and she frequently wept. The victim had recently been diagnosed with Crohn’s disease, and she testified that the stress and anxiety before and during the trial were making her sick. As I stated in my judgment: Her manner was tormented. She stated that “…I feel so worthless…Like I feel disgusting. It’s embarrassing and it hurts so much…” [ 5 ] The Crown submitted a written victim impact statement from the victim on the sentencing. It is a statement of abject despair.

These are some of her words: • A piece of me has been taken from me, having to deal with this for practically my whole life has me wondering how life could’ve been without this pain, stress, deep cutting sadness I have lived with for so many years. • I’m paranoid always second guessing people around my own son, family or not. I’m scared to leave him with anyone being the age that he is, afraid history will repeat and someone will hurt him the way I was hurt. • There is not one day that goes by I wish it never happened.

My own cousin, my family who was suppose to help, teach, protect, care, nurture me has hurt me so bad. I wish I knew why he would want to do this to me, why god? Why did he hurt me? I pray everyday asking for forgiveness because I feel ever since I was young all I’ve been was hurt. • I can’t even have a normal relationship with anyone because I trust no one. Everyone is a suspect in my eyes. You know I still have dreams of that dark basement.

Something I wish I could get rid of but it never goes away. • Up to this day I still feel unloved, like nobody cares about me, writing this brings up so much emotion and tears my mind is everywhere. So much to say but I know deep down I’m very unhappy. Why? I don’t even know I’m always trying to argue with someone and I don’t even know why. [ 6 ] It is apparent that the psychological and emotional consequences of DH’s offences have been severe. [ 7 ] DH continues to deny his guilt, so there is no evidence of remorse. He says the victim “made up the stories”.

The pre- sentence report indicates that he continues to reside with his mother, grandmother, sister and uncle, who is the victim’s father. His parents are separated and he has a good relationship with both. His family is close and supportive. His friends are unaware of his criminal charges. He has had a girlfriend for two years. He asked the author of the pre-sentence report not to interview her, and it is unclear whether she is aware of the charges. DH enjoys his work and has no financial concerns. He has an advanced diploma in computer engineering and works as an IT helpdesk analyst.

Apart from the within findings of guilt, he has no criminal record and no youth court record. [ 8 ] The Crown seeks a sentence of 12 to 18 months of custody and supervision, followed by a period of probation. She submits a period of incarceration may be imposed under section 39(1) (

a) of the Youth Criminal Justice Act . She asks the Court to find as aggravating factors that the offences involved a breach of trust, that DH was significantly older than the complainant, that he was a family member, that he has shown no remorse and taken no counselling, that the complainant was very young, that the acts were repeated and degrading, and that the impact on the complainant was substantial.

In mitigation she notes that DH has no record, and that he was thirteen when the incidents began. [ 9 ] Defence counsel did not dispute that a custodial sentence may be imposed, but submits that a community disposition is appropriate.

He asks the court to consider the accused’s strong and supportive family background, the fact that he is gainfully employed, that he has no history with the criminal justice system, that the events took place over a decade ago and there has been no suggestion of any problems since, that DH was a teenager, and that the exemplary person he is today shows that the a custodial sentence is unnecessary. Defence counsel argues that DH was not in a supervisory role with the victim, nor was he responsible for her, and he submits that therefore the offences did not involve a breach of trust.

In addition to the hardship occasioned by a custodial sentence, the

defence submitted that the accused is required at home by his family as his father is ill and on dialysis, and DH is a candidate for organdonation. [10] I turn now to my reasons for the sentence I intend to impose. I first wish to emphasize that DH was a youth when hecommitted these offences, and must be sentenced accordingly. His crimes must be regarded not as the actions of the man he is now, butas the actions of the youth he was at the time. The principles of the Youth Criminal Justice Act govern.

Thus, regardless of his status asan autonomous adult today, the sentence DH receives must be based on the principle of diminished moral blameworthiness or culpability.Pursuant to the Act, he is to be held accountable through the imposition of a sentence which is consistent with the Declaration ofPrinciples in

section 3 of the Act, and the purposes and principles of sentencing set out in sections 38 and 39 of the Act. [11] Pursuant to

section 3, the sentence must hold DH accountable through measures that are proportionate to the seriousness ofthe offence, and the degree of his responsibility, that promote his rehabilitation and reintegration, and that support the prevention ofcrime by referring him to programs or agencies in the community to address the circumstances underlying his offending behaviour.Based on the principle of diminished moral blameworthiness or culpability, the sentence must emphasize rehabilitation and reintegration,fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.Within the limits of fair and proportionate accountability, the measures taken against DH should reinforce respect for societal values,encourage the repair of harm done to the victim and the community, and be meaningful for him. [12]

Section 38 repeats many of these themes. Pursuant to

section 38, the sentence must hold DH accountable for his offencesthrough the imposition of just sanctions that have meaningful consequences for him, and that promote his rehabilitation and reintegrationinto society, thereby contributing to the long-term protection of the public. The sentence must be proportionate to the seriousness of theoffences and his degree of responsibility for those offences. All available sanctions other than custody that are reasonable in thecircumstances should be considered.

The sentence must be the least restrictive sentence that is capable of achieving the purpose ofaccountability through meaningful consequences and the promotion of rehabilitation. The sentence must promote a sense ofresponsibility in DH and an acknowledgement of the harm done to the victim and the community. [13] In

summary, the sentence must be proportionate to the seriousness of the offence, and consistent with the degree of DH’sresponsibility, emphasizes his reduced level of maturity at the time the offence was committed, be meaningful, and promoterehabilitation and an acknowledgment of the harm done. [14] In addition, I wish to note that I recognize, consistent with the purposes and principles of the Act, that incarceration is asanction of last resort. It is only available in limited circumstances, but pursuant to section 39 (1) (

a) it is available in the circumstancesof this case, where the harm caused was psychological:(R. v. C.D.K., 2005 SCC 78). [15] In applying these various principles, I have considered the fact that DH was significantly older than the victim, whom herepeatedly sexually abused over a period of five years. During this period he grew from a young boy of thirteen to a mature youth ofseventeen. He was an intelligent and capable student, and he knew what he was doing was wrong, yet he persisted. Thus his increasingmaturity did not result in any change in his behaviour, which is a significant cause for concern.

As well, given these circumstances, Iinfer the abuse was premeditated and calculated. These factors increase the level of his culpability or degree of responsibility, and thegravity of the offences. [16] I do not find breach of trust, but that is not the end of the argument. The victim was DH’s young cousin. She was notentrusted to his care, but she was in the care of his family. His mother had a new baby. His grandmother was a remote presence. Herfather was not around. The victim was six when the abuse began. The adults in the home were occupied with other issues.

The victimwas vulnerable and powerless, and DH was able to exploit her, because of her age and because of these circumstances. [17] DH’s actions had devastating consequences. The victim has suffered serious emotional and psychological harm. By heraccount, she lost her childhood. She has been unable to heal as an adult. She is beset by depression, by fear, and anxiety, by anoverwhelming feeling of humiliation and defilement, by an inability to trust others, and by self-loathing. The negative effect of crime onits victim is an important consideration on sentencing. (R. v.

H.S., 2014 ONCA 323 ) [18] In mitigation, I have taken into account the fact that DH has no youth or criminal record, that he is a devoted son with a closefamily, and that he appears to be a hard-working and productive member of society. On the other hand, and although these circumstancesare mitigating, as the Court of Appeal observed in R. v.

H.S., while“…the respondent’s lack of a prior criminal record, work history andotherwise good standing in the community are valid mitigating circumstances to take into account…their weight must be considered inthe light of the fact that it is not unusual for individuals who commit this kind of offence to have jobs or to otherwise be individuals ofapparent good character: See R. v. M.(G.) (ON CA), (1992), 11 O.R. (3d) 225 (C.A.), at p. 232. [19] The question of remorse is also relevant in this context. Absence of remorse is generally not considered an aggravating factor.In R. v. Valentini, (ON CA), [1999] O.J.

No. 251 (Ont. C.A.), Rosenberg, J. explains that lack of remorse “may reston nothing more than the continued assertion of innocence in the face of a guilty verdict following a trial”, and thus for the court to treatit as an aggravating factor “comes perilously close to increasing the sentence because the accused exercised his right to make full answerand defence.” Yet absence of remorse can blunt the impact of mitigating factors in some cases.

Where there has been a lapse of timebetween the commission of an offence of sexual assault and its discovery by the authorities, as in the case at bar, the Court of Appeal hasheld that “…an exemplary life led in the years intervening between the abuse and the sentencing must be accompanied by expressions of genuineremorse and the acceptance of responsibility for one’s actions in order to have appropriate mitigating effect.” R. v. W.W.M., (ON CA) [20] See also the recent case of R. v.

H.S., 2014 ONCA 323 to similar effect. [21] The only indication of remorse in this case occurred when DH was 17, and responding to the phone call from the victim’smother in which she confronted DH about the abuse - a phone call he now denies took place. At that time, the victim’s mother chose not

to take her daughter to the police when she learned that about the abuse by DH. The mother regarded DH as family, and she wanted DHand her daughter to seek help to deal with what had happened. DH chose not to pursue this avenue when no threat of prosecution andpolice involvement existed. Nor has there been any indication from DH since the phone call to suggest he accepts any responsibility forhis actions.

He has denied involvement, and his defence was structured around the premise that the sexual abuse never happened.Furthermore, because DH has never faced his responsibility, there is no obvious route to a rehabilitation plan. Whether he is prepared toexplore the genesis of his behaviour, and to admit to the harm he has caused the victim, remains an open question. [22] It is evident that I find the offences, and the consequences to the victim, to be very serious in this case. Nonetheless, I mustconsider all available sanctions other than custody that are reasonable in the circumstances.

Would it be reasonable to impose a period ofprobation, or of deferred custody- dispositions which would permit DH to serve his sentence in the community? Upon reflection I haveconcluded that such sentences would be unreasonable, and inconsistent with the sentencing principles of the Act. In my view, acommunity sentence would not achieve the purpose of holding DH accountable, because the consequences would not be meaningful tohim. Nor would a community sentence promote his rehabilitation, his sense of responsibility, or his acknowledgement of the harm doneto the victim and the community.

Despite the restrictions on his way of living inherent in a probation or deferred custody order, the effectof such sentences, would permit DH to continue to avoid confronting the facts about his behaviour, and the harm he has caused to thevictim. [23] Although I have characterized DH’s responses to the victim’s mother on the phone as an indication of remorse, I want toqualify that conclusion. What DH said was “Yes I did it. I was experimenting.

You can send the police to pick me up because I knowwhat I did was wrong.” What I find striking about this response is his statement: “I was experimenting.” In this moment of unexpectedconfrontation, DH offered his defence, perhaps his rationale: “I was experimenting.” Neither at that time, nor since, has DHacknowledged the humanity of the victim. Nor has he acknowledged even the possibility that his behaviour caused her trauma. Grantedhe was a youth, but this was not impulsive behaviour. The victim was, for him, an object available for his experimentation.

The victimknew this, and it has devastated her. [24] In the case of R. v. A.(O.) 2007 ONCA 144 , [2007] O.J. No. 800, the Ontario Court of Appeal discussed themeaning of accountability, under

section 72 of the Act, but with reference to the other sentencing principles engaged here, as follows: In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, the moral culpability of the offender, having regard to the intentional risk- taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

We see no other rational way for measuring accountability. [25] In this case, there is a high degree of moral culpability - there was intentional risk-taking (“I know what I did was wrong”),the consequential harm was great, and the normative character of the conduct, the sexual exploitation of a child, is self-evident. Therequirements of accountability are high in this case. Furthermore, in the circumstances of this case, accountability and rehabilitation areintertwined.

In the absence of any acknowledgment of harm he caused, it is difficult to formulate any plan for DH’s rehabilitation. [26] I have concluded that a period of incarceration is required.

I am imposing a custody and supervision order of 9 monthsfollowed by a period of probation of 18 months. [27] The conditions of probation are that you are to keep the peace and be of good behaviour; report forthwith upon your release toa probation officer and thereafter as required; You will have no contact or communication directly or indirectly with the victim or herson, and you will attend for an assessment in relation to sexual offending, and take such counselling as is recommended by yourprobation officer. There will be a DNA order. Released: May 20, 2014. ___________________ Justice Marion Cohen