R. v. H.L., 2022 BCPC 277

Citation: R. v. H.L. 2022 BCPC 277 Date: 20221123 File No: 5092-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REX v. H.L. BAN ON PUBLICATION YOUTH MATTER – RESTRICTION ON ACCESS ss. 110 , 111 and 118 of the Youth Criminal Justice Act s. 486.4 (1) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: D. Schecter Counsel for the Defendant: J. Watt Place of Hearing: Port Alberni , B.C. Dates of Hearing: Aug. 24, 25, 2021, Dec. 15, 16, 17, 2021, Feb. 17, Mar. 29 and Nov. 23, 2022 Date of Judgment: November 23, 2022

INTRODUCTION [ 1 ] These are the reasons for sentence in this case that has to do with a young male sexually assaulting an even younger female. More specifically, in this case, a sixteen year old young male forced vaginal intercourse onto a thirteen year old female by inserting his penis into her vagina. She did not consent to this. He also inserted his finger into her anus and put his penis into her mouth without her consent. The reasons, or factual findings are reported at R. v. H.L. BCPC 51 2022 March 29, 2022. In time, I may choose to put these reasons in writing.

If I do, I may include full citations for the cases I refer to and I will change names to initials. It is important to protect the identity of this youthful accused person as well as the youthful victim. [ 2 ] I pause here to note a point that both the accused and his family seem to forget. She was 13 – and in law, she was not able to consent. Furthermore, and more to the point of the factual findings in this case, it is a fact that this young thirteen year old girl said “no” a number of times. This youthful male did not listen to her.

No matter what spin this young man wants to put on his tale, no matter what he wishes to tell others, no matter how many people ‘can’t believe that he would do such a thing’, this trial clearly established, beyond a reasonable doubt, that this young man, did not understand that ‘No means no.’ [ 3 ] As I look into the body of the Court, I am thankful that H.L. has so many supporters. Whether he admits his guilt or not, I expect you all would still be here. I pose this question, who in this community has supported the victim and her family?

The reports and victim impact statement lead me to believe that H.L.’s family has decided to take sides. More specifically, there is an underlying theme that the victim may not be telling the truth or maybe H.L. has not had a full opportunity to tell his version of events. I am disappointed in the idea that somehow taking sides seems to take the place of empathy and compassion for both of the young people involved in this case. It is the whole of the community that has been harmed. This process is a frightening one for H.L. to go through.

It is equally frightening for the victim. [ 4 ] I am thankful to many of my judicial colleagues for all the decisions they write. In particular, in this case, I borrow heavily on the analysis of the Honourable Judge Doulis in her February 18, 2021 decision R. v. C.Z. , 2021 BCPC 25 . [ 5 ] I acknowledge that the circumstances of the case today are different from the circumstances of C.Z .

In paragraphs 2, 3, and 4 of C.Z ., Judge Doulis captures the facts that she was dealing with, as well as the circumstances of that youthful offender, as well as usual sentences in these type of cases. 2. … In a nutshell, in the early hours of October 14, 2018, in the aftermath of a house party, C.Z., then 16 years old, sexually assaulted S.F. in various highly intrusive ways. S.F. was 14, no more than a mere acquaintance, exhausted, and struggling to regain her sobriety. C.Z. ignored S.F.’s demands to stop and overwhelmed her attempts to resist.

Ultimately, S.F. was able to fend him off and C.Z. gave up trying to have sex with her. The following day, S.F. disclosed to her friends, her mother, and the police that C.Z. had forced sex on her. Despite his persistent denials, C.Z. was arrested, charged and convicted of the offence. 3. C.Z. admitted his wrongdoing to the forensic psychologist, apologized to the Court, was an Indigenous first time young offender, had a history of neurodevelopmental, physical and psychological disorders.

He had a chaotic early childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse, and transgenerational trauma. Despite these disadvantages, C.Z. has not succumbed to substance misuse or other criminal behaviour. 4. Sexual assaults of this magnitude are violent offences that ordinarily attract a custodial sentence, even for young first time offenders. The Crown and Defence jointly recommend a sentence of 24 months’ probation. [ 6 ] I accept there is a wide range of possible sentences.

C.Z . is a precedent that suggests that in some cases a lengthy period of probation might be appropriate. The decision also carefully examines a number of other cases where harsher penalties were imposed. CROWN’S POSITION ON SENTENCE [ 7 ] The Crown seeks a period of custody in the 5 to 9 month range. They also submit that an 18 month Intensive Supervision and Support Order is appropriate and should run concurrent to any period of custody that might be imposed.

They submit that a deferred custody and supervision order may not be available, depending on whether the Court makes any findings of ‘serious bodily harm’. Even if no such finding is made, the Crown still argues that in the circumstances of this case, an appropriate consideration of the sentencing principles favours an actual custodial disposition. DEFENCE POSITION ON SENTENCE [ 8 ] Defence strongly and passionately argues that there are many appropriate sentences other than custody that would be appropriate.

Defence submits a deferred custody and supervision order is one sentence that would allow this young person to remain in the community. It is submitted that intensive supervision in the community is also an option that would provide continuous support, without disrupting his ties to the community, his family, and his employment. THE LAW [ 9 ] I cannot improve on Judge Doulis’ detailing of the law that I must consider in this sentencing.

I rely on her C.Z . decision paragraph’s 6 – 14: SENTENCING YOUNG PERSONS UNDER THE YCJA Objectives of the YCJA [6] C.Z. was 16 years old when he committed the offence for which he is being sentenced and thus is a “young person” as

defined by the Youth Criminal Justice Act, SC 2002, c 1, (the “YCJA”). The YCJA sets out a sentencing regime completely different fromthat established under the Criminal Code. The predominant principles of sentencing and the available sentence ranges are dramaticallydifferent for youths and adults. With the enactment of the YCJA, Parliament created a separate criminal justice system for young personsin recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justicesystem: see R. v. D.B., 2008 SCC 25, para. 41; R. v.

S.J.L., 2009 SCC 14 . [7] The YCJA holds that the youth criminal justice system “is intended to protect the public by holding young personsaccountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the youngperson” by “promoting the rehabilitation and reintegration of young persons who have committed offences”: YCJA, s. 3(1)(

a) Thusthe appropriate sentencing principles under the YCJA are accountability, proportionality, rehabilitation and reintegration: YCJA,s. 3(1)(b). [8] Section 3(1)(

c) of the YCJA states: (

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, involvethe parents, 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 youngpersons with special requirements . . .

Purpose Of Sentencing Under The YCJA [9] Section 38(1) of the YCJA states the purpose of youth sentences is to hold young persons accountable through just sanctions thatensure meaningful consequences for them and promote their rehabilitation and reintegration into society, thereby contributing to thelong-term protection of the public. Principles Of YCJA Sentencing [10] Section 38(2) of the YCJA specifies that: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who hasbeen 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 offencecommitted 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 thatoffence; (

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; (

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 acknowledgement of the harm done to victims and the community; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. [11] The YCJA is clear that rehabilitative measures intended to address problems that appear to have caused the young person tocommit an offence must not result in a sentence that is disproportionate to the seriousness of the offence committed. The Supreme Courtof Canada in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 , commented the protection of the public is a long-term outcome of a of asuccessful youth sentence.

Factors To Be Considered [12] Section 38(3) of the YCJA requires a youth court judge to consider a number of specific factors in in determining an appropriatesentence, including: 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 andprinciples set out in this section.

Sentencing Options [13] Section 42(2) of the YCJA provides the court with a list of sentencing options in escalating intrusiveness. These options rangefrom a reprimand in the least serious cases to an intensive rehabilitative custody and supervision in the most serious violent offences. Theoptions are not mutually exclusive. A court can impose any one or more of the sentences that are not inconsistent with oneanother: s. 42(2).

Section 42(14) of the YCJA provides that for most offences, the maximum combined duration of sentences is two years(unless it is one of the serious offences for which an adult could receive a sentence of life imprisonment, in which case the maximumcustodial sentence in youth justice court is three years). Custodial Sentences For Young Offenders [14] The

preamble to the YCJA expresses the need to discourage custody and supervision as a criminal penalty for young persons.Although, s. 39(1) limits the use of custodial sentences, they are available where the young person has committed a violent offence. Aviolent offence as defined in s. 2 of the YCJA includes one that causes bodily harm. PROPORTIONALITY [10] Judge Doulis then provides a larger context of C.Z. She notes that he is Indigenous, and that the court had the benefit of threereports. C.Z. suffered from a number of disorders, including FASD.

He left school in grade 11, and “manifested signs of mental healthdistress, including low self-esteem, anxiety, self-harm, and suicidal ideation.” I accept the Crown’s submission that the circumstances ofC.Z. with respect to mitigating physical disorders is more mitigating than in our case. [11] I too, under the heading of proportionality, note that our youthful accused is also Indigenous, and I have the benefit of a numberof reports. PROTECTION OF THE PUBLIC [12] Under this heading, Judge Doulis indicates that in C.Z., the accused initially denied sexually assaulting the victim.

Eventually,he admitted his guilt to a doctor and explained that “he couldn’t talk about the offence because he felt ashamed and mad at himself.” [13] I question whether H.L. admits this offence. I acknowledge that there is conflicting information around “remorse”. I fully agreewith the Crown that this is not an aggravating factor. After all, we are dealing with a young person who has a lessened moralblameworthiness. To put it another way, he is young and it is early days with respect to counselling. Perhaps in time, with the assistanceof professionals, this offender will gain insight as to why he is here today.

I will discuss this point in greater detail within the context ofthe reports. PARITY IN SENTENCING [14] Once more, I rely extensively on Judge Doulis’ writing with respect to sentencing possibilities and I am aware that parity ofsentencing must be accomplished, when possible. I have set out my own synopsis of certain cases and they are the “bullet” points notedbelow Judge Doulis’ cases that she refers to in paragraph 33 of the C.Z. decision. I acknowledge the caution that must be consideredwhen trying to place the sexual acts on some sort of rung on a ladder. All sexual assaults are serious.

Some may be more aggravatedthan others, depending on their degree of intrusiveness, but each case must be considered on its own factors. [33] Sentencing a young person under the YCJA is context-specific: R. v. P.R., 2018 SKCA 27. It is a highly individualizedprocess that depends upon the offence, the circumstances of the offence, and the circumstances of the offender. Still, s. 38(2)(

b) ofthe YCJA directs a court to consider parity with other sentences in the region. Sentences for sexual offences usually include a period ofprobation (s. 42(2)(

k) YCJA) with permissible conditions (s. 55(2) YCJA), including community service work (s. 42(2)(

i) YCJA) and acurfew . Often youth sentences for sexual offences include: (

a) where available, an intensive support and supervision program(s. 42(2)(

l) YCJA); and/or (

b) a custody and supervision order (s. 42(2)(

n) YCJA). Courts rarely impose an intensive rehabilitativecustody sentence (s. 42(2)(

r) YCJA) except where the offence is an aggravated sexual assault. [34] Although the B.C. Court of Appeal in R. v. A.A., 2013 BCCA 202 , imposed a deferred custody and supervision orderunder s. 42(2)(

p) of the YCJA, many courts have ruled such an order is statute-barred for sexual offences by virtue of s. 42(5). Thissection precludes a deferred custody and supervision for an offence where a young person “causes or attempts to cause serious bodilyharm.” Sentencing judges often cite R. v. McCraw, (SCC) wherein the Supreme Court held that “serious bodily harm”could include a psychological injury that interfered with the integrity, health, or well-being of a victim. (See: R. v. B.T.L., 2020 BCPC

185, at paras.79; R. v. P.K.K., 2006 ABCA 1; R. v. AW, 2021 ABPC 14 , paras. 70-72; R. v. NAL, 2018 ABPC 211, R. v. AY, 2019 ABPC 325, R. v. JAH, 2016 MBCA 58; R. v. BS, 2017 MBCA 102; R. v. B.V., 2020 SKPC 45 R. v. P.I., 2018 ONCJ 324 ; R. v. S.G.F., 2007 BCPC 168 ). [35] I have set out below some of the sentences the courts imposed for sexual offences by a young offender against a young victim: a. conditional discharge with twelve months’ probation including community service work: R. v. M.M.O., 2017 BCPC78; R. v.

ETM, 2016 ABPC 43 ; • The Honourable Judge Challenger in MMO sentenced a 16 year old for pulling down the pants of a 15 year old. He then touchedher vagina. The victim was intoxicated and asleep. The victim woke up and told him to stop. He immediately stopped, and while hehad no memory of the event, he “never contested” the event. MMO’s antecedents are similar to H.L.’s. However, apparent on the faceof the judgment, the circumstances of the offence are quite different.

The circumstances of the offence in H.L.’s case are much moreaggravating. • The Honourable Judge Redman in ETM gave a conditional discharge to a 17 year old who had intercourse with a 13 year old; thatcase is different than our case today, as the 13 year old provided ‘assent’, even though in law she could not consent. b. probation: (i) 12 months: R. v. P.R., 2018 SKCA 27 ; R. v. P.M., (NL PC); (ii) 18 months: B.V.;and R. v. N.C., 2015 SKPC 79 ; (iii) 24 months: R. v. B.J.L., 2017 BCPC 64 ; AW; R. v. K.O., 2012 NLCA 55; R. v. JB, (NLPC); and R. v.

J.S., 2019 ONCJ 873; (iv) 24 months including community servicework: AY; R. v. BDL, 2013 SKQB 355 ; and R. v. R.J.D.B, 2015 YKTC 16; and (v) 36 months: R. v. CVS, 2010 BCPC 71; • In CVS, The Honourable Judge Frame gave three years probation to a young person who committed a number of sexual acts on ayounger cousin, none of which were intercourse. There was a guilty plea, saving the need to testify. This appeared to weigh heavily infavour of probation, as an alternative to custody. H.L. does not benefit from a guilty plea.

Although, I appreciate he is entitled to have atrial. c. six months’ deferred custody and supervision followed by probation: (i) 9 months’ probation: R. v. DB, 2016 ABPC 23 ;(ii)12 months’ probation’ plus 100 hours community service work and a curfew: BS; (iii) 24 months’ probation: R. v. KS, 2016 YKTC23; • The Honourable Judge Cozens in KS sentenced the offender for a number of sexual offences against his two younger sisters. Hewas 19 at the time of sentencing, but 14 to 17 at the time of the offending behaviour. Arguably, the acts were more aggravated as theyextended over a period of time.

The youth had no record and was good on bail. Judge Cozens wrote a reminder about the YouthCriminal Justice Act that states: WHEREAS members of society share a responsibility to address the developmental challenges and theneeds of young persons and to guide them into adulthood; He sentenced the youth to a deferred custody order; in his decision, he alsoreferences R. v. K.O. 2012 NLCA 55 decision where a 15 year old forced sexual intercourse upon a 12 year old female acquaintance.

That offender did not plead guilty and had shown no insight into the offending behaviour. d. six months’ deferred custody and supervision with a concurrent two-year intensive support and supervisionprogram: R. v. A.A., 2013 BCCA 202 ; • In this BCCA decision a two year intensive support and supervision order was imposed on a 16 year old who sexually assaultedhis 13 year old sister, who became pregnant. The lower court judge had imposed a 120 custody and supervision order. The Court ofAppeal noted that the accused was Indigenous and that denunciation was not to be relied on in the sentencing process.

I appreciate theCrown’s update on this proposition, and recognize that, subject to statutory limitations, denunciation and specific deterrence may be partof the sentencing analysis, but general deterrence must not play any role in determining an appropriate or fit sentence in this case. e. custody and supervision: (i) 34 days’ time served: R. v. SCL., 2014 BCCA 336 and R. v.

PEL, 2017 BCCA 215; and (ii) 6 weeks followed by two years’ probation including 100 hours of community work service: PI; • I note that the facts in SCL and PEL are very different than our facts with respect to the circumstances of the offender and offence. They were both historical sexual assault cases. f. three months’ custody and community supervision with 24 months’ intensive support and supervision program: BTL; • In B.T.L., a 14 year old forced unprotected sex with his 13 year old cousin. She told him to stop and he eventually did stop. Therewas no trial, as he had pled guilty.

The accused was a young Indigenous first time offender. I agree with Crown’s submissions and I toonote that H.L. and A.G. are not related. As well, I note that B.T.L. had the benefit of a significant mitigating factor, the guilty plea. g. five months’ custody and supervision followed by 12 months’ probation: R. v. BS, 2017 MBCA 102; • In BS, the accused had plead guilty to sexual assault. The appeal court confirmed that the offence brought with it significantpsychological harm, and thus met the criteria of ‘bodily harm’.

Due to delay in concluding the proceedings, which were not the fault ofthe accused, the court held it was not in the interests of justice to have the accused serve any other time in custody than he already had. h. six months’ custody and supervision order followed by 12 months’ probation: R. v. JK, 2011 NWTTC 11 ; • In this older NWT case, the youth forced intercourse on an unconscious girl. i. six months’ custody and supervision followed by 12 months’ intensive support and supervision program: SGF;

• I note that paragraph 27 of R. v. B.T.L. provides a number of authorities that the Crown relied on when seeking a six to eightmonth custodial sentence, which was to be accompanied by a 24 month intensive supervision and support program. I have reviewedthese cases and have made these observations: o In S.G.F., the youthful accused made a four year old touch his penis. The touching was brief.

The Honourable Judge Cohen notedthe youth had already spent some time in custody, but believed that “no sentence in the community would properly protect thecommunity, would have any capacity to achieve the goal of rehabilitation and reintegration of this young person or ensure that this youngperson sees the meaningful consequences of his actions. While I appreciate the crime in our case does not involve such a youthfulvictim. I do acknowledge I have the same concern with respect to rehabilitation and reintegration of H.L. o In C.V.S., the sexual acts were more aggravating.

The court easily concluded that crimes of sexual assault met the threshold of being‘a serious violent offence’, but declined to impose a custodial sentence. It appears that the guilty plea, and saving the victim fromtestifying was a guiding factor. o D.B.V. is a case where a 14 year old sexually assaulted a nine year old. The youth received an 18 month sentence of custody. j. nine months’ custody (open) and supervision followed by 24 months’ intensive support and supervision program: R. v.

SS,2010 BCPC 19 (sexual assault with a weapon); • In SS, The Honourable Judge Wingham sentenced a youth for a number of charges, including sexual assault. The accused wasconsidered at high risk to re-offend. He was sentenced to a nine month custody and supervision order; 6 months to be served in a youthfacility, not an adult facility. k. nine months’ custody and supervision followed by 18 months’ probation: R. v. JS, 2017 YKTC 23 ; • This 16 year old was convicted at trial for forcing intercourse on a younger girl. The offender was Indigenous and there weremany reports considered.

By way of distinguishable antecedents, the youth in JS had a youth record and had failed to abide by a courtorders in the past. Judge Cozens found that a closed custody disposition was required to hold JS accountable for his actions and to allowfor him to participate in rehabilitative counselling and programming. l. twelve months’ custody (open) and supervision followed by: (i) 12 months’ probation: R. v. J.B., 2017 ONCJ 542; R. v. DT, 2017 ABPC 297 ; NAL, R. v. AK, 2019 ABPC 264 ; and (ii) 24 months’probation: R. v.

JGHW, 2020 MBCA 86 ; • I have reviewed each of these cases and did not find them overly helpful for our purposes today. m. twelve months’ custody (closed) and supervision followed by 12 months’ probation: R. v. TB, 2013 ONCA 675; R. v. J.P.W., 2010 BCPC 36; R. v. PL, 2017 ABPC 198; R. v. MM, 2017 ABPC 268 ; • In J.P.W. The Honourable Judge Davis sentenced an Indigenous offender for sexually assaulting a friend that had come over for avisit. Reference was made to the Zimmerman case where Mr. Justice Romilly comments that a range of 2 to 8 years is generally therange of sentence.

Of course, in my view, that may be in reference to an adult offender, not a youth. In J.P.W. the accused had a youthrecord. The court refers to the s.39 YCJA requirement, which I am also mindful of. The judge imposed a 12 month sentence. n. fourteen months’ custody (closed) and supervision followed by 22 months’ probation: R. v. JMP, 2016 YKTC 24 ; • The youthful accused did not express remorse, and continued to deny the offence. The youth was sentenced to a 14 monthcustodial period. o. fifteen months’ custody (open) and supervision followed by (i) 5 months’ probation: R. v.

MA, 2020 SKPC 13 (sexualassault causing bodily harm); and (ii) 9 months’ probation: R. v. NE, 2015 ONCJ 767; p. eighteen months’ custody (open) and supervision: R. v. RS, 2015 ONCJ 767; q. twenty-one months’ custody (open) and supervision followed by 3 months’ probation: R. v. CS, 2015 ONCJ 767; r. twenty-two months’ custody and supervision followed by a 2-month intensive support and supervision program: R. v. JL, 2013BCPC 347 (assault causing bodily harm); and s. eighteen months’ intensive rehabilitative custody followed by12 months’ conditional supervision in the community: R.v.

DBV, 2011 BCSC 1350 (aggravated assault). [36] The disparity in sentences arises from the disparity in the circumstances of the offence, the offender and the victim. Broadlyspeaking, the authorities cited above address those factors identified in s. 38(3) of the YCJA and in Friesen. [37] The circumstances of the offence include: (

a) the offence charged (i.e. sexual assault, sexual interference, sexual assaultcausing bodily harm, sexual assault with a weapon, incest, or aggravated assault); (

b) the frequency of the sexual abuse; (

c) the degree ofphysical interference (YCJA, s. 38(3)(b)); (

d) the duration of the sexual abuse; (

e) whether it involved a breach of a position of trust; (f)the presence of coercion or grooming; (

g) the presence of gratuitous violence; and (

h) whether the sexual abuse occurred in the victim’shome. [38] The circumstances of the offender include: (

a) the offender’s age at the time of the offence; (

b) the offender’s age at sentencing;(

c) the offender’s participation in the offence (YCJA s. 38(3)(a)); (

d) whether the offender was in a position of trust vis-à-vis the victim;(

e) the offender’s physical, mental and emotional health; (

f) the offender’s previous findings of guilt (YCJA s. 38(3)(e)); (

g) whether theoffender was Indigenous or otherwise socially disadvantaged; (

h) the offender degree of consanguinity to the victim; (

i) the offender’s

family and community support; (

j) the duration and conditions of the offender’s bail; (

k) the offender’s performance on bail; (

l) theoffender’s efforts at pre-sentence rehabilitation; (

m) the offender’s ongoing risk to the community; (

n) whether the offender pled guilty;(

o) whether the offender expressed remorse; and (

p) the time the offender spent in pre-sentence custody (YCJA s. 38(3)(d)). [39] The circumstances of the victim include: (

a) the age of the victim; (

b) the number of victims; (

c) whether the victim wasIndigenous or an otherwise vulnerable person; (

d) the physical, psychological, emotional, and financial impact of the offence on thevictim (YCJA, s. 38(3)(b)); and (

e) the impact on the community. CIRCUMSTANCES OF THE OFFENCE [15] This is not a case of accidentally having intercourse with a 13 year old when you ought to have known better. This is a casewhere a 16 male youth forced a young female to have intercourse with him. Not only was she not able to consent, but she made it clearthat she did not want to have his penis in her vagina and mouth, and she did not consent to having him put his finger in her anus. [16] She said “no” many times.

She said “no” in such a way to let him know that she did not want to do these sexual acts. [17] This was not an ‘accident’, this crime was an intentional act. Whether his family or the community wish to think ‘it is notpossible’ for this young man to have committed this crime, I remind them of this point with respect to the trial process. [18] I was the judge who presided over a multiple day trial. I have heard every word of all the witnesses, including the words of thisyoung accused person.

The Crown has clearly established, beyond a reasonable doubt, that this victim said no, and he did not listen. [19] Back to the process of sentencing, with respect to particular considerations, once more, I find Judge Doulis’ examination ofrelevant factors a useful process to follow in this case. [41] Absent are a number of aggravating factors often present in cases where the court has imposed a custodial youth sentence. Forexample: a. the assault did not occur in S.F.’s home where she was entitled to feel safe: R. v.

Anderson, 2015 MBCA 30 ; b. the victim was neither sleeping nor unconscious at the time of the assault; c. the assault was not accompanied by other forms of gratuitous violence, such as punching, kicking or choking; and d. did not threaten violence or engage in other forms of intimidation. [42] I am mindful the Supreme Court of Canada in Friesen cautions against establishing a hierarchy of physical acts for sexualoffences or treating penetration as the most egregious conduct.

I note that while there was penetration in this case, I also accept, that theassault was highly intrusive of S.F.’s physical, psychological, and sexual integrity. [20] On the topic of Friesen, I accept and agree with the Crown’s submission that the case has some value in its overall commentarywith respect to victims of sexual offences, especially in the context of adults. However, I also agree with defence counsel’s submissionthat Friesen has an extremely limited application to our case. The circumstances in our case are very different than the overall context ofthe Friesen decision.

Circumstances Of The Offender [43] A fit sentence balances a number of factors personal to C.Z., many of which militate toward a non-custodial sentence. Theseinclude: a. Age at the time of the offence. Generally speaking, very young offenders are considered less morally blameworthy. The accusedwas16 at the time of the offence, which is not particularly “young” under the YCJA which sentences youth between the ages of 12 and17; • H.L. was of the same age b. Age at the time of sentencing. • H.L. is 19 at the time of this sentencing. c. Participation. • H.L. is solely responsible for this offence.

In this case, in absolutely no way did the victim play a role in this offence. d. Position of trust: • H.L. was a friend. He was not in a position of trust, even though the victim thought of him as ‘brother-like’. e. Health: • The offender’s physical, mental and emotional health is highly relevant. All in all H.L. is healthy. f. Previous findings of guilt: • H.L. is a first-time offender. He has no previous findings of guilt and there are no other outstanding matters before the court. As

Judge Doulis points out with respect to this consideration, this characteristic, however, is not unusual as many offenders convicted of sexual offences under the YCJA are first time offenders; g. Indigenous heritage: • C.Z. is an Indigenous youth with significant Gladue factors; • H.L. also has significant Gladue factors, which are provided in a Gladue Report and have been referred to by counsel. h. Consanguinity: • they are not related. i. Family and community support : • H. L. has significant supports; he is surrounded by family that loves him.

I echo his counsel’s submission that “he is surrounded by a network of support.” j. Bail (duration and conditions): • No doubt his bail conditions, the stress of the trial and stigma in his community have had a profound effect on H.L. k. Bail (performance ): • H.L. has done well on bail. l. Pre-sentence rehabilitation : • Judge Doulis commented on C.Z. and said although his participation in counselling thus far has been mediocre at best, C.Z. has adopted a relatively prosocial and healthy lifestyle. • H.L. shares a number of qualities with C.Z. listed below. I accept that he has done some counselling.

Albeit, the details are not really known. I also accept that these counselling supports will continue to be available when he needs them. I would have preferred a detailed plan of what continuous cultural supports might be best suited for this young person. Specifically: i. C.Z. does not drink alcohol or consume street drugs; ii. C.Z. does work when it is available; iii. C.Z. understands the need to complete high school and has plans to do so once this sentencing process has completed; iv. Although somewhat socially isolated, C.Z. is engaged in sport, fitness training, hunting, and fishing; iv.

C.Z. has a supportive family; and vi. C.Z. has indicated his willingness to engage in counselling; m. Ongoing risk to the community: • has not demonstrated any criminal behaviour other than that for which he is being sentenced; n. Guilty plea : • H.L. was convicted after a trial, which is not aggravating but deprives him of the mitigating effect of a guilty plea; o. Remorse: • In C.Z . Judge Doulis characterized the accused’s admissions of guilt and remorse as “late-blooming”, but genuine. • I have not seen any clear indication of even “late blooming” remorse in this case.

I appreciate that both counsel have made extensive submissions on this topic. I also am mindful that it might be very difficult for H.L. to express how he is feeling. p. Pre-sentence custody: • C.Z. has not spent any time in pre-sentence detention as a result of this offence.

He was arrested and released on a Promise of a Young Person to Appear and Undertaking to a Peace officer on October 15, 2018. • Similarly, H.L. has not spent any time in custody. • I also note an obvious difference in these two cases, C.Z. was a joint submission, or a joint proposal of sentence and H.L. is not a case where counsel are in agreement as to sentence. Impact On The Victim And The Community

[44] The impact on the victim takes into consideration a number of factors which, in this case, militate toward a custodialsentence. These include: a. The number of victims. There was one victim; b. The age of the victim. She was 13 at time of the offence, and although young, was not as young as many of the childrenvictimized by young offenders. A significant number of the cases referenced above involve victims who were prepubescent and theoffender’s younger siblings or relatives; c. Victim vulnerability. She was youthful, and a friend d. Victim Impact.

The harm caused to sexual assault victims is well-documented. Children who have been sexually abused cansuffer physical, emotional and psychological harm which may last a lifetime. However, I do accept she was likely emotionally harmed asa result of this offence, and that it was reasonably foreseeable, even to a 16-year-old boy with C.Z.’s cognitive limitations; and e. Community impact. The Court can consider the prevalence of sexual offences in the community when crafting asentence: R. v. Dejaeger, 2018 NUCA 7 citing R. v. Lacasse, 2015 SCC 64at para 87.

I do not have any statistics before me onthe incidents of sexual assaults in [omitted for publication]. Anecdotally, I can say it is an offence that is commonly prosecuted in allProvincial Courts in northern British Columbia. Collateral Consequences [45] The collateral consequences are not necessarily aggravating or mitigating factors as they do not relate to the gravity of theoffence or the level of responsibility of the offender: R. v. Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. Nevertheless, they dospeak to the personal circumstances of the offender.

The consequences can flow from the function of legislation, or social, personal, oroccupational implications. C.Z. reported to the Youth Worker the impact of the offence on his life: C.Z. reported that he tries not to think about the offence as for two years it has killed him eternally, his name ruined, and he has acceptedthe position he is in. C.Z. has lost all his friends and people he does not know tell their kids to stay away from him.

The RCMP arrestedC.Z. in school and there were internet posts smearing his character, warning he was a rapist and to stay away from him. [46] There is no doubt persons charged with a criminal offences face serious social and personal consequences. They experiencethe loss of liberty, or stigmatization or ostracism in the community, as well as other social, psychological, and economic harms.

Theseare not mitigating; however, in a small community, these factors, if prolonged and pervasive, may constitute hardships personal to theoffender which the Court ought to take into account when determining a proportionate sentence: R. v. TWS, 2018 ABQB 870 ,paras. 78-80. In R. v. Neilson, 2020 ABQB 556 , Justice K.M. Eidsvik, held the court ought to consider the community stigma,ostracism, and physical violence the offender suffered as going to some length to satisfy the denunciation component of sentencing. THE REPORTS [21] There are four very helpful reports.

THE PRE-SENTENCE REPORT – By Youth Probation Officer [22] Filed with Court June 27, 2022 (nearly five months ago). [23] One correction. The author mistakenly notes that the accused pled guilty to one count of sexual interference. In fact, I foundhim guilty after trial, and he was found guilty of sexual assault. I indicated it was my view that the sexual interference should be stayedas a result of Kienapple.

The formal stay was not accomplished until today. [24] The PSR confirms that H.L. was 18 at the time of the report being written, that he is a member of the Tseshaht First Nation andcomes from “a large family full of aunties, uncles, and grandparents.” [25] A theme in the report of his, and his family’s ability to “help others” seems to exist.

By all accounts, it appears that H.L. thinksof himself as a “nice guy” and his mother describes him as a caring, compassionate person … “who would not purposefully hurtanyone.” [26] The report indicates that with respect to education and employment, even though he meets the criteria for deaf and hard ofhearing, he does quite well. As his counsel indicated, despite some learning hurdles, he finished high school and is gainfully employed. [27] He has seen a counsellor for a few sessions. The report indicates some very positive points.

He is athletic, thus physically ableand he does not use illicit substances. [28] As for “Attitude Towards the Offence”, the writer indicates that “H.L. has some insight into the offense and is prepared to take responsibility for his actions.

He says he is not sure why he did itbecause he knows right from wrong. … He says he has gone over the incident repeatedly in his head to sort out why he did it, how ithappened and how to make sure it never happens again.” “He is sorry he hurt her.” [29] I acknowledge the author’s comment that “it is clear that H.L.’s mother does not agree with the circumstances of the offence.” Iprefer H.L.’s words of remorse over his mother’s denial that essentially an otherwise “nice guy” could not possibly commit such anoffence.

I note, however, that this expression of ‘remorse’ to the Youth Probation Officer differs from my impression of his comments toother authors of other reports.

[ 30 ] Certainly, what should not be denied is the victims’ mothers’ words that her daughter “has been a mess since she was offended against and that it has been a horrific two years.” The victim impact statements speak for themselves. [ 31 ] The Report confirms that the s. 39(1) YCJA criteria are met with respect to a custodial sentence being one option. This legal contention is not contested. However, I acknowledge the passion in which defence argues that there are alternatives to custody that are appropriate.

The report also details some probation conditions and indicates an intention to refer him to Nanaimo Youth Forensic Psychiatric Services so he can do offence specific treatment. THE PSYCHOSOCIAL REPORT from June 23, 2022 [ 32 ] This is an extensive report written by a psychiatric social worker with Youth forensic Psychiatric Services. [ 33 ] This report also confirms that H.L. has a very supportive family.

I note again, the honest, but unhelpful comments of his mother who states that “no one in H.L.’s immediate and extended family believe him capable of committing the offences.” It seems apparent that she is displeased with the conclusions of the trial. In my respectful view, these denials are not conducive to rehabilitation. Essentially, it is a similar problem to what the sentencing Judge faced in R. v.

C.T.H. 2022 BCPC 90 . [ 34 ] I pause to say this, while not in evidence, I am certain that prior to this night, A.G. also would have described H.L. as a “nice guy” and she too would have probably sworn on a stack of bibles that he could never do such a thing. The reality is that even nice guys can commit bad crimes, whether you believe it or not. I certainly must not consider it aggravating that his mother takes the position she does. H.L. cannot control what she thinks. I agree with his counsel’s argument that he must not be penalized for what those around him believe or say.

But I don’t think her position is conducive to long term rehabilitation. One must keep in mind his psychological assessment shows that his insight into who he is can be informed by those around him, particularly his family. [ 35 ] On the point of maybe he has not had a chance to explain his version of events, I would say that this youthful accused was given every opportunity to tell his side of the story. There were six days of trial. He answered many questions. Most questions were straightforward and extremely simple. Factual findings are made based on all credible and reliable evidence.

The benefit of the doubt on any particular point, always favours the accused. Only when the Crown has proven an offence beyond all reasonable doubt can a person be found guilty of a crime. In this case, H.L. was represented by very able counsel. He was given every opportunity to share his version of events. As I have said many times in these courts, a Judge does not just flip a coin to decide who is telling the truth. The reality is that the trial process is a truth finding process.

If there was any reasonable doubt that this young person committed the offence of sexual assault, we would not be here today. [ 36 ] The report confirms his educational and medical history. [ 37 ] The report confirms that some counselling took place with a counsellor. [ 38 ] He is again described as a kind person. He is fully employed, has no record of behavioural difficulties and a supportive family.

THE PSYCHOLOGICAL REPORT - June 8, 2022 by Psychologist [ 39 ] After describing the circumstances, the author notes that at some point in time H.L. told his grandmother that “what the victim was saying was not true, but that he decided to allow her to say it if it helped her get through a rough time in her life.” This strikes me as a bit unusual, and I do not know what to make of it. Considering the findings of fact at the trial, this comment appears to be one of minimization or denial. Or again, maybe he is simply conforming his perspective to the preferred perspective of those around him. [ 40 ] Dr.

Crandall says that H.L. spoke articulately and engaged well in the interview. The report says he did some counselling and that H.L. said it “really helped.” [ 41 ] There continues to be an underlying theme of denial. So, on the one hand he seems to sometimes acknowledge the underlying offence, he also says things such as “probably having sex with her was wrong” because she did not give any verbal consent; however he believed that her actions indicated consent.” This matrix of misunderstanding his behaviour will be the topic of future counselling sessions.

It is not his fault that he has not had the benefit of some of this counselling yet. [ 42 ] Once more, I remind myself that she was not legally able to consent. Furthermore, I accept and have concluded that in fact, she said “no a number of times”, in a clear, firm, unequivocal voice. [ 43 ] The report details a psychological assessment based on very particular behavioural assessment tools, including a juvenile sex offender assessment protocol. [ 44 ] The report indicates some interesting characteristics.

I briefly touched on this point earlier, but he is described as a person that wants to “conform to the expectation of others, particularly towards family members and authority figures.” The report exacts an opinion about the type of person H.L is. In its most generous and wide lens, the report describes a person that many young men might be, immature, but with a need to be loved by all those around him. [ 45 ] It may be that he has been a victim in the past, I have very little information on this topic.

The report confirms that there are no other offences before the court and that the offence was not premeditated.

To the contrary the writer finds the offence was committed in an impulsive, opportunistic manner. [ 46 ] He explained to the author that “He expresses regret, but he believes he did not rape the victim as he thought there was some type of implied consent.” The author writes “H.L. does appear to feel guilty for his actions and has apologized to the victim at least two different times.” [ 47 ] The report recommends a number of things, including the Youth Forensic Psychiatric Services for treatment, as is suggested by

the youth probation officer. THE GLADUE REPORT – filed August 31, 2022 [ 48 ] It has been 8 months since this trial concluded. This passage of time has provided the opportunity to be creative. H.L. is lucky that he has such strong members of his community that are able to be part of his growth as he matures. [ 49 ] I am thankful to the author of the report who has provided me a detailed history of who H.L. is in relation to his culture and community.

He has had the cultural benefit of being intensely involved in the Nuu-chah-nulth cultural teachings. [ 50 ] There is a long list of Gladue Factors identified in the report. I acknowledge that the author echoes a comment I have made in a number of decisions that in this area we “do not have an Indigenous court, disadvantaging him from being sentenced in a culturally appropriate Indigenous court that eliminates many of the systemic barriers that limit the access of justice to Indigenous victims and offenders.” [ 51 ] I offered the ability to be creative in how this sentencing was completed.

I am happy that some of that time has been spent in what has been referred to as “traditional cleansing ceremonies” and “individual counselling”. I note that this young Indigenous man has a “vast amount of community and family members” who support him. [ 52 ] The report details many supportive interventions that will be available to this youthful accused. He will have access to elders, wellness workers and group counselling. [ 53 ] As mentioned, I would have preferred a detailed cultural plan that charted a course of a long term healing path. I would have liked to hear from elders in his community.

This was an eight month opportunity to design a cultural plan and offer it to the Court. It would have been another alternative for me to consider. I have not been told why further steps were not taken, but this case now needs to be concluded. CONCLUSIONS Aggravating Factors [ 54 ] There was sexual conduct that involved this accused inserting his penis into the complainant’s vagina without her consent. He also put his penis in her mouth and penetrated her anus with his finger. These acts were also not done with her consent. She was 13 years old and in elementary school at the time of the offending behaviour.

He was 16 years old and in high school. Yes, as defence argues, ‘he was a kid’. I balance his youthfulness with this idea: He was certainly of an age where he knew the difference between right and wrong. [ 55 ] Not only did she not ‘assent’, but she said “no” multiple times. Mitigating Factors [ 56 ] He is young. It is significant that he has no youth record at all. He was even younger at the time of the sexual assault. He has strong family and community supports. He has done well on bail and the reports are positive.

His Gladue factors work hand in hand with the idea that as a youth, his moral blameworthiness and culpability are lessened. But for his youthfulness, the age he was at the time of the offence, and his Gladue factors, I expect a custodial sentence in the range of 6 months to 12 months would be well within the appropriate range of sentencing. [ 57 ] I appreciate that there is a wide range of possible sentences that can be imposed. I also appreciate that periods of custody should be the last resort. I should consider all alternatives, other than jail, for all offenders.

I am particularly aware that this principle also must be carefully considered in the context of a ‘youth sentence’. I also conclude that this principle is even heightened in the context of sentencing a youthful Indigenous offender. [ 58 ] I have concluded that a period of custody is necessary in this case. I know that no matter what sentence is imposed this case is illustrative of a dual crisis that exists in many communities. First, too many young girls are sexually victimized. Second, we have too many Indigenous people in our jails. I am particularly aware that we have too many Indigenous youth in our jails.

No sentence that I impose will satisfy or mitigate against this crisis. Nor do I expect a jail sentence to ease the victim’s concerns. I must say on this point, I got the impression that the victim never did want H.L. to be hurt or sent to jail. It is because of H.L.’s actions, and my decision, that H.L. is going to jail today. As I know, H.L. has not been in custody previously, I appreciate any period of custody should be the least amount possible to meet the sentencing principles above. [ 59 ] Why is a noncustodial sentence not adequate to achieve the purpose set out in s. 38(1) ?

I am required to provide some reasons on this topic. [ 60 ] In my view, founded on the testimony of the victim and details provided in the victim impact statements filed with the Court, I find that this offence does meet the criteria of serious bodily harm. I understand that I still may have the ability to impose a deferred custody and supervision order, despite this finding. I also acknowledge that a stand alone Intensive Support and Supervision Order is a sentencing option that can be utilized independent of other sentencing possibilities, or even concurrently with other sentencing options.

In my view, even with H.L.’s positive mitigating factors, a more harsh sanction must be used to make this youth accountable to his actions. Only then will there be meaningful consequences. [ 61 ] I agree that the sentence imposed today must make this youthful offender accountable through just sanctions which provide meaningful consequences. Of course, the ultimate goal with sentencing any youth is that the resulting sentence must promote rehabilitation and reintegration of the young person into society.

[ 62 ] I agree with The Honourable Justice Garson’s comments in R. v. S.N.J.S. August 27, 2013 decision BCCA 379 with respect to the principles involved when sentencing a youth. I note one clear distinguishing factor, that in S.N.J.S . the youth was being sentenced for a much more serious crime. However, the courts observations found from paragraph 26 to 31 are helpful to me: [29] “Accountability” is not defined in the Act , but must be understood in part to be concerned with the severity of the sentence in relationship to the seriousness of the offence.

Holding a young person “accountable” must also be understood to include consideration of whether the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society. While s. 38(1)(

d) and (

e) do require the Court to impose the least restrictive sentence possible, this does not mean, as the appellant contends, that the “least restrictive” requirement should be read independently from the other principles and purposes in the Act, particularly “accountability”.

This notion of accountability includes consideration of the seriousness of the offence and requires a sentencing judge to balance and match the rehabilitative needs of the young person, with the other purposes and principles of sentencing. (See also Malcolm Thorburn, “Accountability and Proportionality in Youth Sentencing” (2009) 55 Criminal Law Quarterly, 304; but note the 2013 YCJA amendments post-date this article). [ 63 ] H.L. seems to clasp on to the idea that he was “just following her lead” and “he thought she was consenting.” Again, at one point he even apparently says “ what the victim was saying was not true, but that he decided to allow her to say it if it helped her get through a rough time in her life.” H .L. will have the benefit of professionals to help him through this process of understanding his actions within the context of accountability.

Even though he is being temporarily removed from his family and community, I have every reason to believe they will be here to support him when he is released from custody. [ 64 ] If anyone is unclear as to why we are here, I would invite him, his family, and the community to read the reasons provided by me. There are approximately 36 pages or 223 paragraphs. As the presiding judge, I have had the benefit of considering all the witnesses’ evidence in this case.

As the trial Judge I have a particularly objective ability to consider what each witness says and consider the totality of the evidence. [ 65 ] To be clear, and I say this for everyone’s benefit, this 19 year old is being sentenced for acts done when he was 16. Specifically, he is going into custody because he had sexual intercourse with a 13 year old. In law a 13 year old cannot consent to sexual acts. [ 66 ] More to the point in this case, she said the words “no” multiple times.

As the young complainant told the Court in her testimony, “Me saying no should have been enough”. [ 67 ] I agree. [ 68 ] Perhaps if this was a case where remorse was indicated by a guilty plea, saving the need for the victim to testify, accountability and long term rehabilitation could be achieved through a community based proposition. But these mitigating factors do not exist in this case. [ 69 ] In my view, custody provides a meaningful consequence for such a serious crime.

I do not come to this conclusion lightly, but I do come to this conclusion after considering less intrusive sanctions. [ 70 ] H.L. please stand. [ 71 ] For the crime of sexually assaulting A.G. on a day in the month of April 2020, I sentence you to 90 days custody. [ 72 ] There will also be an Intensive Support and Supervision Order period of probation for 18 months. This order commences today.

The conditions are as follows: [ 73 ] You must keep the peace and be of good behaviour. [ 74 ] You must report in person to a Youth Probation Officer at 4088-8 th Avenue Port Alberni as soon as possible. [ 75 ] You must provide your contact information to the Youth Probation Officer and not change that information without obtaining their prior approval. [ 76 ] You must have no contact or communication, directly or indirectly, with A.G. or S.G. [ 77 ] You must not go to any place A.G or S.G lives, works, attends school, worships or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 78 ] You must not go to [omitted for publication] Avenue, Port Alberni. [ 79 ] You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your Youth Probation Officer. [ 80 ] You are to attend for any counselling such as programming at the Nanaimo Youth Forensic Psychiatric Services as directed. [ 81 ] You shall attend, participate in, and successfully complete an Intensive Support and Supervision program if directed to do so by your Youth Probation Officer. [ 82 ] Pursuant to section 119(1)(s)(ii) all the reports in this sentencing are able to be provided to the Youth Probation Officer for case management. [ 83 ] There will be an order for DNA.

_____________________________ The Honourable Judge Wolf