R v YS, 2023 MBPC 47

CITATION: R v YS, 2023 MBPC 47 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) D. Simard ) for the Crown– and – ) ) Y. S. ) L. Miclette ) for the Accused ) ) Delivered: ) October 11, 2023 RESTRICTION ON PUBLICATION Pursuant to

section 486.4 of the Criminal Code, any information that could identify the victim or witness shall not be published in anydocument or broadcast or transmitted in any way, in proceedings in respect to this offence. ALLEN, P.J. [1] Y.S. was convicted after trial of Sexual Assault,

section 271 Criminal Code; Sexual Interference,

section 151 Criminal Code;and three counts of failing to comply with a release order pursuant to section 145(5)(

a) of the Criminal Code. The Sexual Assault chargewas judicially stayed pursuant to R v Kienapple, (SCC), [1975] 1 SCR 729. [2] The Sexual Interference conviction relates to his relationship with the 14-year-old complainant (S.C.). Those charges tookplace between October 4, 2020 and October 6, 2020. The breaches took place between August 1, 2020 and December 30, 2020. [3] The facts of this case are set out in my earlier released reasons for conviction. To summarize, Mr. Y.S. was friends with N.C.,the complainant’s older sister. Mr. Y.S. and N.C. had met as they were mutually employed at the same place.

They became close friends,in communication on a daily basis and at various times Y.S. babysat N.C.’s infant son on weekends and at other times. At some point,N.C.’s mother and younger sister, S.C., came to Winnipeg for the mother to attend a medical appointment. Y.S. requested and wasapproved by N.C. to take S.C. for an outing to play basketball with him and some of his friends. [4] I found at trial that after basketball Y.S. took S.C. back to his residence and had full, unprotected intercourse with her.

As well,the next day Y.S. was left alone in a rental unit where the mother and S.C. were staying and he again had unprotected intercourse withS.C. [5] Additionally, Y.S. was convicted of breaching a release order, which prohibited him from using or possessing a cell phone,also prohibited him from accessing social media websites, and finally prohibited him from direct contact with any person under the ageof 18 years.

All of these restrictions had been applied to him approximately six months earlier when he was charged with SexualInterference relating to another 14-year-old girl. [6] An Impact of Race and Culture Assessment (IRCA) Report was prepared in this case. That report sets out Y.S.’ background. [7] Y.S. was born into a well-off Indian family in Kaithal, Haryana, India. He is now 23 years old and was 20 years old at the timeof the offences before the court. [8] Y.S. “went to the best schools where he could receive an exceptional education”.

He “believes he has the best parents in theworld . . . very caring and supportive . . . they never treated him poorly” (IRCA report, page 10). [9] Y.S. moved to Winnipeg in 2019 to further his education. His family paid for his tuition and rent while living in Winnipeg.The reporter says that Y.S. told her that he had been sexually assaulted when he was in grade five or six by his gymnastics teacher. [10] Of particular note from the IRCA Report, is the paragraph dealing with racism on page 20 of the report.

It reads as follows: South Asian people may be subjected to everyday forms of anti-Asian racism in their interactions with others. These experiences alsoextend beyond interpersonal encounters and into public spaces. Specifically, anti-Asian racism has remained in the legal, economic, andsocial institutions of Canada (Lee, 2023). Mr. [Y.S.] shared that he has experienced racism while attending school, from other residents,and when working. When he has shared his experiences of racism with others, it is often minimized, and he is encouraged to ignore thepeople who have caused him harm.

His experiences of racism have led to a variety of mental health and psychological issues such asfeelings of distress, fear, depression, and anxiety.

[ 11 ] The Crown position as to this sentencing is that these charges should result in Y.S. going to jail for seven years. The Defence position is that a period of incarceration for three and one-half years is called for. [ 12 ] Y.S. has a Canadian criminal record with a conviction from March of 2022 wherein he was convicted of breaching a no-contact release condition. Additionally, on August 18, 2022, he was convicted of possessing a cellphone when prohibited and being on social media when prohibited.

On August 23, 2023, he was given an 18-month jail sentence for sexual interference with a 14-year-old Indigenous girl. [ 13 ] A Victim Impact Statement was provided by S.C. She said: - physically- i cant show affection and i dont like when people touch me - emotion- its hard for me to show emotion towards my family because i think i feel embarrassed about everything - scared- i feel scared in public around men and its hard for me to trust people ( sic ) [ 14 ] The Crown told the Court that Y.S. was ordered to be deported on September 9, 2022.

Consequently, the sentencing decision currently before the court will not impact his immigration status. [ 15 ] All criminal sentencings in Canada are governed by the principles of sentencing as set out in the Canadian Criminal Code . [ 16 ] The fundamental sentencing principle is found at

section 718.1 and reads: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 17 ] In this case, the gravity of the offence of sexual interference with a 14-year-old child is obvious. Y.S. was an adult of 20 years at the time of this offence. There is no evidence that his responsibility is tempered by intoxication or addiction. [ 18 ] In 2020, the Supreme Court of Canada in R v Friesen ( 2020 SCC 9 ), set out guidelines for sentencing in cases of sexual abuse of children.

At paragraph 114, the Court said: [I]t is incumbent on us to provide an overall message that is clear ( D. (D.) , at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim. [ 19 ] At paragraph 76, the Court provided direction to judges in terms of balancing the gravity of the offence: Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.) , at para. 80; R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90 , at para. 35 ). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children.

Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences.

We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [ 20 ] As to the offender’s culpability, the Court in Friesen said the following (at para 88): Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.

In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to ( Arcand , at para. 58; see also M. (C.A.) , at para. 80; Morrisey , at para. 48 ). . . From paragraph 89: All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity. . .

Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation. . . From paragraph 90: The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and

objectification of children is highly morally blameworthy because children are so vulnerable . . . “[a]s to moral blameworthiness, the useof a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst ofintentions” (para. 31, quoting R. v.

L.F.W. (1997), (NL CA), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, perCameron J.A. (“L.F.W. (C.A.)”)). [21] The fact that Y.S. was on release for the same offence, also with a 14-year-old Indigenous complainant, would appear tosomewhat negate any suggestion that his having grown up in another culture would have left him unaware of the expectations ofCanadian law. [22] Additionally, the fact of the previous charges being followed by the offences before the court should be considered in assessingY.S.’ likelihood to re-offend. Likelihood to re-offend is relevant to the objective of rehabilitation from

section 718(

d) of the CriminalCode. In this case, these circumstances in my opinion cause concern as to the likelihood of Y.S. re-offending. Additionally, thelikelihood to re-offend calls for additional concern for the safety of children in the future and puts additional emphasis on

section 718(c)of the Criminal Code as to separation of the offender from society (see Friesen, para 123). [23] In addition to the concern regarding likelihood to re-offend, the Friesen case cites abuse of a position of trust or authority as afactor to consider in determining a fit sentence. [24] In this case, Y.S. had previously babysat for the complainant’s older sister.

As S.C.’s mother was suffering with issues ofdementia, it was N.C. the older sister, who was responsible for S.C.’s well-being and who trusted Y.S. to protect the child – both whenhe took her to play basketball with his friends, and the next day when she left her sister in his care while she accompanied her mother to amedical appointment. [25] As to where this trust relationship should be placed on a spectrum of trust relationships, I would place it as on the lower end ofthe scale but nevertheless Y.S.’ actions constituted a breach of the trust N.C. had in him. [26] Another factor cited by the Friesen case is duration and frequency of sexual abuse.

In this case, Y.S. took advantage of thevictim on two occasions. The first time at his residence, the second time by coming into the child’s bed in a rental accommodation. Thechild was left alone and defenceless because her caregiver, trusted her close friend Y.S. He took advantage of that situation and sexuallyassaulted the child in her own bed. [27] Age of the victim is a further consideration. S.C. was 14 years old. Clearly legally underage and according to the evidenceaccepted from trial, Y.S. had been told that she was 14 years old.

There is a significant emotional development gap between a 20-year-old man and a 14-year-old girl. Particularly one who has lived her life in a relatively isolated rural setting on a First Nation. [28] As to the degree of physical interference, I accepted the evidence of S.C. that Y.S. had full intercourse with her on bothoccasions and that no condom was used.

The facts in this case indicate physical interference of the highest nature. [29] About this factor, the Supreme Court in Friesen said: “We acknowledge that the degree of physical interference is a recognizedaggravating factor” (at para 138). [30] Because no condom was used, S.C. was exposed to possible disease and/or pregnancy. This elevates the harm done to her andin my opinion is an aggravating factor in this sentencing.

It is also aggravating that the abuse occurred on two occasions and that thesecond instance was in the victim’s residence and in the sanctity of her bed. [31] Additionally, Y.S. was on release conditions at the time. These release conditions were designed to protect the public. He wasnot to be in the company of children and yet he had not only been left with N.C.’s infant son and S.C., but had regularly been babysittingN.C.’s child. [32] The Defence argues that the breach of trust in this case should be considered to be at the lowest level.

Additionally, theDefence argues that rehabilitation must also be of significant concern as the offender is only 23 years old. I agree that the sentencingprinciple of rehabilitation (found at

section 718(d)) is very much a factor in this sentencing. [33] The Defence also argues that protection of the public is not a concern in this matter as he will be deported before release. [34] It is difficult to assess the offender’s potential for rehabilitation in this case. There is no mention in the IRCA report as to theoffender being concerned about what has transpired or concerned as to the well-being of the child or her sister N.C., his former friend. [35] On the other hand, the offender does set out for the IRCA reporter his plans to further his education and his ambitions in termsof career, etc.

Similarly, when asked by the Court if he had any comments, he spoke of his future but said nothing in recognition of theharm done to the victim by his actions. [36]

Section 718 of the Criminal Code sets out a number of objectives that are fundamental to sentencing. These include: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [37] Canadian case law and legislation (see Criminal Code

section 718.01) has made it clear that in sentencing as to sex offencesagainst children, the principles of denunciation and deterrence must be preeminent. Sexual interference with a child is of singular andindelible harm to a young person. This form of activity must be strongly denounced and any fit sentence must deter not only thisoffender, but others from this offence. [38] The gravity of sexual interference with a child is such that separation from society is called for. As stated above, rehabilitationis always a relevant principle of sentencing, and is particularly so in the case of a 23-year-old offender. [39]

Section 718.2(

b) of the Criminal Code says that sentences should be “similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances”. [40] To that end, both Crown and Defence cited a number of cases.

The Crown referred to R v Sidwell, 2015 MBCA 56 at paragraph49, wherein the Court said: I conclude that regardless of whether the charge in this case is one of sexual interference or sexual assault, the jurisprudence indicatesthat the starting point is four to five years for the major sexual assault of a child when in a position of trust, assuming that the accused isa mature person with no criminal record and prior good character. See R. v. Borkowsky (H.), 2008 MBCA 2 at para. 58, 225 Man.R. (2d)127; and R. v.

E.H.M., 2015 ABCA 131 at para. 8 (QL). [41] The Crown argues that the starting point suggested in the Sidwell case should be higher now, after the Friesen decision, toaccord with the Supreme Court’s admonition that sentences have been too low in this area and that subject to individual circumstancesthey should generally be raised. [42] The Crown also referenced R v McPherson, unreported ((21 December 2021), Winnipeg, 013-03206, (Man.PC)), wherein theaccused, who was 18 at the time of the offences, on two occasions sexually interfered with his seven-year-old sister.

On one occasion, hewent to his sister’s bedroom, “placed her on top of him and began to grind against her” (McPherson Transcript, at page 12, lines 26-27).On the second occasion, he had her sit on his naked lap and he tried to get her to touch his penis. Judge Moar sentenced Mr.

McPhersonto jail for 42 months. [43] The significant difference between that case and the case at bar is that the nature of the interference was less significant inMcPherson but arguably the breach of trust was greater as McPherson was the complainant’s brother as opposed to a family friend. [44] The Crown also filed R v DJS, 2022 MBQB 116. In that case, the 23-year-old offender met the 14-year-old autisticcomplainant online. He, after a lengthy correspondence, invited her to his residence where they had unprotected vaginal and anal sex overtwo days.

Significant Gladue factors were taken into consideration (see R v Gladue, (SCC), [1999] 1 SCR 688). Hereceived a sentence of three years and six months. [45] The Defence filed R v BAJN, 2021 MBCA 32. In that case, the 18-year-old offender perpetrated a sexual relationship with a 13-year-old child. They had unprotected sex approximately five times and the child became pregnant and delivered a baby. In sentencing theoffender to two years (less a day) of incarceration, the Court said (at para 47): On the other hand, there are significant mitigating circumstances present.

The accused’s very young age, immaturity, cognitive deficits,and dysfunctional upbringing and family life, need to be considered and factored in the balance (see Friesen at para 91). [46] The Defence also referred to R v Nystrom, 2023 BCCA 232. In that case, the 19-year-old offender was found guilty of sexuallyassaulting a 14-year-old child on three occasions. Both were homeless. [47] The sex acts were forced vaginal and anal sex and digital penetration. The offender had a learning disability and a “mildintellectual disability” (Nystrom at para 7).

He was living on a disability pension and relied on outreach support to assist him with basiclife skills. Ultimately, the offender received a sentence of three and one-half years in jail. [48] I was told at the sentencing hearing that the accused would not be arguing that the information from the IRCA report mitigateshis moral culpability. [49] It is important to note that the Criminal Code

section 718.01 as to offences against children, and

section 718.04 as to offencesagainst vulnerable persons, including particularly Aboriginal and female individuals, require that the sentencing principles ofdenunciation and deterrence receive primary consideration. In adjudicating this matter, I have considered the gravity of the offences andthe moral culpability of Mr. Y.S. and the aggravating factors including that he breached the complainant’s family’s trust that he wouldprotect S.C., and that at the time of this significant offence he was ignoring court orders that had been put in place to protect against justwhat transpired.

In my opinion, the aggravating factors are significant in this case and any appropriate sentence requires a significantperiod of incarceration to effect denunciation and deterrence. I have also taken into consideration the sentencing guideline suggestionsmade by the Manitoba Court of Appeal in Sidwell and by the Supreme Court of Canada in Friesen. [50] This matter is mitigated somewhat by the offender’s youth, being only 23 years old, and by a recognition that he has come froma different culture and may have experienced sexual abuse himself.

[ 51 ] Accordingly, Y.S. will be sentenced to a period of incarceration for five years on the charge of sexual interference, Criminal Code

section 151 . [ 52 ] As to the charge of being in possession of a cellphone when prohibited, he will be sentenced to a period of incarceration for 60 days. [ 53 ] For breaching his release order for accessing the internet when prohibited, he will be sentenced to a period of incarceration for 60 days. [ 54 ] For breaching his release order by being in the presence of children when prohibited, he will be sentenced to a period of incarceration for 60 days. [ 55 ] All of the sentences on the breaches will be concurrent to each other and concurrent to the Sexual Interference sentence.

The overall sentence is five years of incarceration. Although the breach offences stand alone as separate offences, I have made them concurrent to the substantive sentence from the perspective of totality, as a five-year sentence is a substantial sentence for a relatively young person and in my opinion is sufficient to meet the requirements of sentencing, as set out in

section 718 of the Criminal Code , considering all of the circumstances in this case. [ 56 ] Mr. Y.S.’ period of incarceration will be reduced by his time in custody, which is 615 days (enhanced at 923 days). Therefore, his sentence on the Sexual Interference charge is 1,825 days less 923 days, equalling 902 days going forward. This sentence will run consecutively to his current sentence. [ 57 ] Additionally, there will be a mandatory DNA order, the sample of which is to be taken while in custody; a 20-year order under the Sex Offender Information Registration Act (SOIRA); and a lifetime weapons prohibition pursuant to

section 109 of the Criminal Code . Original signed by Judge Allen H. L. ALLEN, P.J.