2011 QCCQ 13550, 2011 QCCQ 13550

LSJPA — 1153 2011 QCCQ 13550 JA 0734 COURT OF QUEBEC Youth Division CANADA PROVINCE OF QUEBEC DISTRICT OF ... No.: 525-03-045496-098 DATE: November 11, 2011 ______________________________________________________________________ THE HONOURABLE DENIS ASSELIN, J.C.Q., PRESIDING ______________________________________________________________________ THE QUEEN v. X Accused ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ I.

INTRODUCTION [ 1 ] The detained young person appeared on October 1, 2009, to answer to sixteen charges, including one count of sexual assault, four counts of extortion, six counts of luring a child, one count of possession of child pornography, one count of accessing child pornography, one count of producing child pornography, and two counts of invitation to sexual touching; these crimes were committed between June 15 and July 22, 2009, against four girls under the age of 16 years. [ 2 ] The Crown opposed the release of the accused and argued grounds justifying his detention. [ 3 ] On October 5, 2009, Judge Juanita Westmoreland-Traoré held that the detention of the young person was necessary for the protection or safety of the public.

Instead of ordering that he be detained, she placed him in the care of a responsible person, his father, who undertook in writing to take custody of him and comply with several other conditions that the judge specified at the time, the whole in accordance with

section 31 of the Youth Criminal Justice Act ( YCJA ). [ 4 ] Under the terms of the undertaking regarding the placement of the accused in the care of his father, the young person was to have no computer access, and was to remain at home every day, 24 hours a day, except when accompanied by one of his parents to attend school, to work, or to receive medical care. [ 5 ] On November 2, 2010, the young person pleaded guilty to six of the sixteen counts, namely: - having sexually assaulted Y, thereby committing an indictable offence under section 271(1) (

a) of the Criminal Code ; - having communicated with Y by means of a computer system for the purpose of facilitating the commission of a child pornography offence against Y, thereby committing an indictable offence under

section 172.1(2) (

a) of the Criminal Code (luring a child); - having communicated with Z by means of a computer system for the purpose of facilitating the commission of a child pornography offence against Z, thereby committing an indictable offence under

section 172.1(2) (

a) of the Criminal Code (luring a child); - having communicated with A by means of a computer system for the purpose of facilitating the commission of a child pornography offence against A, thereby committing an indictable offence under

section 172.1(2) (

a) of the Criminal Code (luring a child); - having communicated with B by means of a computer system for the purpose of facilitating the commission of a child pornography offence against B, thereby committing an indictable offence under

section 172.1(2) (

a) of the Criminal Code (luring a child); and

- having produced child pornography, thereby committing an indictable offence under

section 163.1(2) (

a) of the Criminal Code . [ 6 ] The Crown prosecutor then recited the essential facts underlying these offences, and the young person admitted to these facts through his counsel. [ 7 ] Since these facts support the charges to which the young person has pleaded guilty, the Court, under

section 36 of the YCJA , finds him guilty of the offences. [ 8 ] At the request of the parties, the Court required the provincial director to have a pre-sentence report prepared and submitted (section 40 of the YCJA ) and ordered that the young person be assessed by the Centre de psychiatrie légale de Montréal (section 36 of the YCJA ). [ 9 ] The psychiatric report dated January 13, 2011, and the pre-sentence report dated April 6, 2011, were sent to the Court and to the parties.

The pre-sentence report recommended a deferred custody and supervision sentence of six months, followed by eighteen months’ probation subject to the same conditions as the deferred custodial sentence.

Among other things, the psychiatric report concluded that the young person’s risk of sexual recidivism could be assumed in the community. [ 10 ] On May 2, 2011, the Crown prosecutor wrote to the young person’s counsel to notify her that, during the May 6 sentencing hearing, she intended to ask the Court to designate the sexual assault offence against Y as a “serious violent offence” in accordance with subsection 42(9) of the YCJA . [ 11 ] At the beginning of the hearing on May 6, 2011, the Crown prosecutor officially submitted her application to the Court as she had announced, arguing that, because Y sustained serious bodily harm during the sexual assault, the offence is a “serious violent offence” (“SVO”) under subsection 2(1) of the YCJA . [ 12 ] If the Court finds that the sexual assault was a “serious violent offence”, subsection 42(5) precludes deferred custody, contemplated in paragraph 42(2)( p ), as an applicable sentence. [ 13 ] The Crown prosecutor submits that placement in custody is required in order to meet the purpose and principles of

section 38. For all of the offences combined, she recommends a sentence of twelve months’ custody and supervision followed by a twelve-month probation, subject to the conditions recommended in the pre-sentence report. [ 14 ] Counsel for the young person argues that the application for an SVO designation is inadmissible because it was not made in time.

She submits that, according to the prevailing Court of Quebec case law, the Crown should make its application after the conviction but before the pre-sentence report is prepared. [ 15 ] She states, however, that she completely agrees with the sentence recommended by the authors of the pre-sentence report. [ 16 ] Because a determination that an offence is a “serious violent offence” is part of the sentence (subsection 42(10) of the YCJA ), the Court asked the parties for submissions both with respect to the determination and the appropriate sentence in view of all of the offences to which the young person pleaded guilty.

In addition to May 6, the sentencing hearing dates were July 6, July 8, and September 9, 2011. II. ISSUES [ 17 ] This case raises the following two issues: 1) Is the Crown’s application to have the sexual assault against Y, as set out in the first count of the information, designated a “serious violent offence” inadmissible because it was made too late? 2) Is placement in custody the only sentence that would comply with the purpose and principles set out in

section 38 of the YCJA ? III. FACTS RELATED TO THE COMMISSION OF THE OFFENCES [ 18 ] The young person and the four victims attended the same private school from Secondary I to Secondary III. Little by little, he befriended them. He saw them outside of school, visited their homes and had them visit his home, and exchanged countless messages with them via his computer and cellular phone. [ 19 ] Over the years, he told them that he and his friends were engaged in illegal activities, that they had guns, and even that they were part of the Mafia, along with his family.

Despite these jarring revelations, he became a kind of big brother, confidant and protector for the victims. He won not only their confidence, but that of their parents, who believed that their daughters were safe with him. [ 20 ] On certain evenings in early 2009, taking advantage of the fact that his parents were asleep, he left the house with his father’s car, despite having no driver’s licence. He then went to pick up the four victims at their residence and dropped them off at either a park or a bar, explaining that he needed to collect from some delinquent debtors.

Around two or three o’clock in the morning, he picked them up again and drove them back to their homes. [ 21 ] On or about June 14, 2009, the young person contacted one of the victims, A, pretending to be [pseudonym A] and claiming to have hacked the young person’s communication system. He offered A money to help him set a trap for the young person in order to kidnap him and kill him. A contacted the young person on his cell phone. He confirmed that he was hacked and asked A to keep

communicating with [pseudonym A] and play along to find out what plans he had for the young person. [Pseudonym A] then suggested that A meet with the young person on a park bench and kiss him so that [pseudonym A] and his friends could take advantage of the situation and kidnap the young person. A did not want to play this role but suggested Y instead because she was certain that Y would accept because of her friendship with the young person.

She contacted Y, who agreed to play the role after the young person told her that his friends would be hiding and ready to jump on the kidnappers when they tried to kidnap him. Twice, namely, on June 15 and June 16, Y sat with the young person and kissed him a park bench as arranged, but obviously the kidnappers never showed up. On the third day, June 17, Y told the young person that she did not believe him and that she did not want to play the game any longer. He then became verbally aggressive. He pointed out parked trucks, where he claimed his friends were hiding.

Y yielded to the pressure and kissed the young person. [ 22 ] On June 18, the young person contacted A again. This time, he claimed to be [pseudonym A’s] “boss”. This “boss” told her that the young person’s friends killed his man [pseudonym A]. He asked her to send nude photos of herself and Y, or else he would kill the young person by planting a bomb in his house. Later, he told her that the young person was in front of him, on his knees, and that he would kill the young person if she did not send him the photos. He added that the young person was crying and asking him to kill him.

A therefore sent pictures of herself and Y to save their friend’s life. [ 23 ] On June 30, 2009, knowing that Y, A and Z were together at the cinema, the young person sent them messages, claiming once again to be [pseudonym A’s] “boss”. The “boss” threatened to kill him if they did not send him nude pictures of themselves. The three girls went to a restaurant bathroom and photographed themselves nude using Y’s cell phone.

They then sent the photos to [pseudonym A’s] “boss” to save their friend’s life. [ 24 ] Around early July, the victims were spending the night at Y’s house, a fact that the young person was completely aware of. [Pseudonym A’s] “boss” contacted the victims again, but this time, he wanted more. He once again threatened to kill their friend unless they filmed each other nude while kissing and touching each other. Again, the young girls carried out the instructions.

Just prior to this, the young person had contacted Y and told her not to obey the order because it was wrong and he would rather allow himself to be killed. Despite this, the girls carried out the order so they would not have the young person’s death on their conscience. [ 25 ] The young person laid it on even thicker. He contacted the victims to tell them that his kidnappers were holding him in Maine, that they shot him in the leg, and that he was in terrible pain. They then received a photo of him in which he appeared to be dead, along with a message stating that his body would be sent to them.

A few days later, however, the young person phoned them to tell them that he had escaped, that he was only unconscious in the photo, and that his kidnappers had taken his young female cousin. [ 26 ] The young person was still not satisfied. He continued to work on his Machiavellian plan to have sexual relations with one of his victims, Y, for whom he has romantic feelings. [ 27 ] On July 20, he explained to Y that they had to film themselves having sex, and send the film of their lovemaking to the people who had kidnapped his little cousin, whom Y knows, to prevent them from killing her.

Y initially refused, but under the insistence of the young person, she ultimately agreed. Although she did not have a driver’s licence, she took her mother’s minivan during the night without her knowledge and met with the young person. She set up her laptop and webcam in the back of the minivan and filmed their sexual relations. She copied the video onto a CD, which she gave to the young person. [ 28 ] The next day, the young person asked Y to do it again, claiming that the sexual relations were hard to see, but she refused. He sent her several messages to convince her, but was unsuccessful.

He then sent her a message purporting to be from one of the members of the late [pseudonym A’s] gang, telling her that he knew where she lived, and threatening to rape her if she refused. She then secretly borrowed her mother’s minivan at night again, leaving the house with A and Z who were supposed to be sleeping over, to meet the young person in a park. She cried and said that she had had enough. Furious, the young person left the scene in his parents’ car, making the tires squeal.

Later, he returned and apologized to the crying girl, but reminded her that it was no longer his life that was in danger but that of his young cousin. She succumbed once again, and the two went inside the victim’s mother’s minivan. The young person installed Y’s laptop and webcam in the back of the minivan. He put on a condom and penetrated her vagina. In addition, Y performed fellatio on him.

She then met with her friends, A and Z, and they returned to Y’s house in the early hours of the morning. [ 29 ] Around 2 a.m., Y’s father noticed that the family minivan was not in the garage driveway and that the girls were not in his daughter’s room. He presumed that his daughter and her two friends had gone on an inconsequential little excursion. [ 30 ] Around 9 a.m., he woke the girls up in order to ask them about their nocturnal outing. Under the pressure of questioning, they told them some of the story, but not all of the details.

According to his understanding, the girls had made a few pictures and a somewhat bungled film in order to help the young person, who was being threatened; and they feared as much for their own safety as they did for the young person’s safety. [ 31 ] Y’s father took measures to keep his daughter and the three other victims safe, and he alerted their parents. His wife called the young person on the same day, telling him to put a stop to the whole thing and not communicate with the girls anymore.

In the evening, the young person sent them a message to reassure them and to say that the girls were no longer in danger: [ translation ]: “My friends will protect you and keep an eye on you, and you can enjoy your vacation”. [ 32 ] Since Secondary I, Y’s father had been hearing from his daughter and the other victims that the young person boasted of being in the Mafia along with his family. In his view, the ethnic origin of the family lent additional credence to the story, although he was not certain whether the story was true.

He chose not to investigate the matter any further, believing that ignorance was the best solution. He nevertheless advised his daughter to be vigilant. [ 33 ] In his view, the young person seemed to be a good young man who was sensitive, polite, and respectful, and who showed no aggression toward his daughter or any other member of his family. He considered the young person trustworthy. Even after his daughter’s revelations, he relied on the young person and his friends to protect them.

He also did not think it was necessary to go to the police and report what the young person had done to his daughter and the other girls because he had not seen the pictures or the film. From what his daughters told him, he believed that there were three pictures and a botched video. Only after the police intervened did he

discover the magnitude of the matter. In addition, he did not go to the police to report the threats that were made against the young person and that caused the young person to solicit the assistance of his daughter and her friends, even though the girls truly believed that he was in danger and feared for his safety as well as their own.

One of the girls even showed the father a photo on her cell phone that was sent by the young person, in which he appeared to have been beaten. [ 34 ] Only two or three weeks later did he call the young person’s parents to give them a general outline of the situation and to set up a meeting with the other victims’ parents. The meeting took place shortly thereafter, in a bar. The young person’s parents were appalled by what they learned and feared that their son had connections to a street gang. [ 35 ] Immediately after this meeting, the young person’s father asked him to explain what was going on.

Instead of revealing his scheme, the young person said that some guys were after him and threatening him because he had done certain things. The father told him that he doubted his story and that he wanted to think about it. He imposed certain restrictions on the young person, including a curfew and limitations on the use of his cell phone.

After catching his son in his bedroom crying a few times, he gradually discovered the truth. [ 36 ] One week after the second sexual assault, the young person asked his parents if he could change schools, purportedly so that he could go to a boys-only school. [ 37 ] Despite having been prohibited by her father from doing so, Y continued to communicate with the young person. She continued to believe that he was in danger, and he did not reveal his ruse to her. On September 3, 2009, she was caught smoking in school.

She was sent to the addiction counsellor and opened up to her, telling her everything the young person had done to her and made her and her friends do. The addiction counsellor reported the situation to the police. The police conducted a search of the young person’s family residence and seized photos and videos of the victims on the family computer and on the young person’s laptop and BlackBerry. The police also traced photos and videos of the victims, including videos of the sexual assaults, to the computers of the victims, primarily Y and A.

Until then, the victims, their parents, and the accused’s parents had decided to settle the matter between themselves rather than asking the police to intervene. IV. THE PRE-SENTENCE REPORT 1) The parents’ reaction and degree of responsibility [ 38 ] The young person told the authors of the pre-sentence report that, beginning in the first year of secondary school, a climate of trust was established between himself and the young victims, and between himself and the victims’ parents.

When he went out with them in the evening, the parents asked him to take care of them — to be, in a sense, their protector. [ 39 ] The young girls trusted him and thought of him like their brother, to the extent that they walked around in front of him scantily clad and sometimes even without a bra, causing him to be sexually aroused. [ 40 ] The young person admits to all the facts disclosed in the investigation report (P-1), and admits that the ultimate objective of his scheme was to have sexual relations with Y, which he did not believe that he could do otherwise because of his lack of confidence and the fact that he felt rejected by the girls, who did not accord him the importance that he wanted. [ 41 ] During the first two meetings, he showed little unease, remorse, or guilt in relation to the victims.

During the third meeting, he was affected by the tense climate within his family to a greater degree and showed more regret. [ 42 ] The young person has completed a six-month course of therapy and feels he has been [ translation ] “in prison” since October 5, 2009, due to the restrictions in the undertaking given pursuant to

section 31 of the YCJA and with which he is complying. In view of all of this, the young person feels that he has been [ translation ] “a good boy” since the undertaking was given, that a custodial sentence would therefore be disproportionate, and that the only reasonable and sufficient sentence would be community service.

He says that he does not know [ translation ] “what went on in my head”, because he is from a good family, [ translation ] “opens doors for people, does not wear baggy pants, and is protective of girls.” [ 43 ] The young person’s parents say that they feel [ translation ] “very uncomfortable” in relation to the victims. The father, who did not foresee this in any way, feels guilty. He always considered his son to be a responsible young man. The parents cannot understand what happened to their son.

They feel, however, that he no longer has a problem because they talked to him and he underwent a six- month course of therapy with a psychologist. The father is worried, however, about the fact that his son has not revealed anything to his girlfriend, whom he has been seeing since December 2010. [ 44 ] The young person’s parents do not consider him to be a criminal, and they hope that he will not be placed with offenders. He has been paying for his misdeeds for a year and a half, and they have also tightened the grip on him.

A custodial sentence could turn him into a [ translation ] “dropout.” They want him to benefit from probation involving volunteer work with senior citizens. 2) The young person’s personal situation [ 45 ] The young person is currently 17 years old. He has no prior criminal record and never showed signs of a behavioural disorder at home or at school. He is an only child, lives with his parents, and has been attending college since last August. Since the age of four, he has been playing hockey actively. It has served as an outlet for his anger and a way to please his parents and inspire their pride in him.

He even went to Europe from April 16 to April 26, 2011, to play in a hockey tournament. [ 46 ] The parents say that, as a child, he was an adorable and sensitive boy. They describe him as an attentive young man who is very loving toward those who surround him and who is fond of children and seniors. He has never had a drug or alcohol problem.

[ 47 ] On June 27, 2011, he began weekly therapy with the Centre de psychiatrie légale de Montréal in connection with his sexual problems. It should be noted that, during the February 2011 meetings for the preparation of the report, he stated that he no longer needed help. 3) Criminological analysis and recommendations [ 48 ] The authors of the pre-sentence report acknowledge that several elements warrant consideration of a sentence of custody and supervision.

The main elements in this regard are as follows: - The planning and implementation of a scheme, over a period of roughly five weeks, in which he abused the trust and friendship of the four victims in order to extort sexual favours from them and thereby satisfy his sexual impulses; - The pursuit and gradually increasing sophistication of his deceitful conduct, in which he engaged without concern for what he might put the victims through; - The minimization of his problems and his claims that he no longer needs help; - The minimization of the gravity of his acts by the fact that he has complied with all of the conditions of the undertaking under

section 31 of the YCJA , and the fact that he saw a psychologist for six months; and - The fact that the young person used his social skills to ensnare his victims, who thought of him as a protector, and that he did so without arousing the suspicion of their parents or his parents. [ 49 ] The authors of the report rule out a custodial sentence, primarily because the risk of sexual recidivism is manageable in the community if the young person receives regular treatment from the Centre de psychiatrie légale de Montréal.

In her testimony during the July 8 hearing, report co-author Hélène Bois said that she believed the young person will report for his treatment, notably because of the supervision exercised by his parents and because he has been complying with the terms of his undertaking since October 5, 2009.

In addition, she is of the opinion that, although the young person has delinquent thoughts, he does not have a delinquent profile or lifestyle. [ 50 ] Accordingly, the authors of the pre-sentence report recommend a deferred sentence of six months of custody and supervision, subject to the following conditions: - The young person must keep the peace and be of good behaviour; - The young person must appear before the Youth Division when required; - The young person must report to the youth worker responsible for his case when the youth worker so requires, and submit to the youth worker’s supervision; - The young person must attend a school or educational or training institution, or make best efforts to find and keep appropriate employment, and provide evidence thereof to the youth worker when required; - The young person must follow any course of action suggested by the Centre de psychiatrie légale de Montréal for as long as the Centre deems it necessary; - The young person must refrain from contacting the victims, either directly or indirectly; and - The young person must comply with the following curfew: 9:00 p.m. to 6:00 a.m. from Sunday to Thursday, and 10:00 p.m. to 6:00 a.m. on Friday and Saturday, except in the presence of either of his parents. [ 51 ] In addition to this sentence, there would be an eighteen-month probation, which would be subject to the same conditions as the deferred custody, but without the curfew. [ 52 ] Ms.

Bois further states that, if the Court opted for the Crown’s recommendation instead and sentenced the young person to twelve months of custody and supervision, he would not be authorized to attend college for one-third of the sentence, or in other words, for four months. He could continue his therapy at the Centre de psychiatrie légale de Montréal, however, for the entire eight-month duration of his custodial sentence. V.

THE PSYCHIATRIC REPORT [ 53 ] The authors of the psychiatric report, a criminologist and a psychiatrist, work at the Centre de psychiatrie légale de Montréal, which is part of the Institut Philippe-Pinel. [ 54 ] For the purposes of their assessment, they met with the young person on December 16, 2010, and with his father on December 20, 2010. They also consulted the police report. [ 55 ] The young person told them that he had a happy childhood and was loved and cherished by his parents, of whom he speaks in very positive terms.

The father described him as always having been a very endearing, generous, jovial child, who made everyone happy and never manifested any behavioural disorder. During his childhood and part of his adolescence, however, a problem with excess weight caused him a great deal of anxiety because people sometimes made fun of him. His intensive hockey-playing was a way of burning off some energy and letting off some steam. [ 56 ] The young person was never exposed to deviant sexual models and was never sexually abused. There is apparently no history of

such abuse in his family. The father reports nothing unusual about his son’s sexuality. The young person describes himself as having been popular as a friend but not as a love interest, and states that this was a source of frustration for him. He was attracted to Y, one of the four victims, and wanted to be her boyfriend. [ 57 ] The young person acknowledges most of the events, the use of lies and manipulation to obtain sexual favours, and the sexual video footage. Unlike the victims, he does not perceive the whole dimension of coercion and violence.

He states that he was very insistent that the young women accede to his requests, but denies being aggressive. He admits to having sexual relations with Y, but not to having forced her or threatened to rape her if she refused. Under the pressure of questioning, he ultimately admitted that she cried at one point during sexual contact. He denies that he asked her for fellatio.

What he remembers more is feeling proud and happy to have had sexual relations like other boys of his age, and having enjoyed the sexual experience, which turned him from a “loser” into someone who was “super hot.” He said that he had a feeling of power during the sexual relations, without perceiving the dimension of control and violence. He acknowledges that he did not take the young women into consideration. [ 58 ] The experts used the ERASOR (Estimate of Risk of Adolescent Sexual Offence Recidivism; Wording & Cuven 2001) instrument on the young person.

An analysis of the results obtained using this instrument discloses a low current risk of recidivism, which can be assumed in the community. However, the experts note that the young person’s self-criticism is partial, notably with respect to the sexual issues, and that he in no way perceives the entire dimension of violence and control involved in the assaults. [ 59 ] This is why they are of the opinion that [ translation ] “supervision in the community, combined with clinical treatment, will provide support and structure that will foster sound risk management and the resumption of better-adapted development”.

In their view, the young person should pursue psychotherapy that specifically addresses the sexual and relational problems so that he can gain greater insight into everything that occurred. VI. PSYCHOLOGICAL TRAUMA SUFFERED BY THE VICTIMS [ 60 ] The authors of the pre-sentence report met with each of the victims and their parents. The parents were genuinely fearful for their daughter’s safety until they learned of the young person’s ruse, but this was only after the police intervened.

Some of the parents confided that they subsequently went through some trying times with their teenage daughters and that they themselves experienced, and still experience, sadness with respect to the psychological after-effects that the girls continue to live with. [ 61 ] Y, who was 15 years old at the time of the offences, said that she had clearly told the young person that she never had any romantic feelings for him. At no time did she show any such feelings to him.

She only gave in because of the pressure and the fear that he used against her and because of her friendship for him. [ 62 ] The stress that she experienced affected her academic performance and caused her insomnia and panic attacks. She had to see a psychologist once a week for six months. She says that she is still fragile, particularly in her relationship with her boyfriend. [ 63 ] During her testimony at the hearing on July 6, 2011, she specified that it had only been five months since she truly realized that the young person [ translation ] “conned her”.

She still feels confused today and has trouble trusting or confiding in others.

In fact, she broke into tears in the middle of her testimony, and the Court had to adjourn in view of her obvious distress, even though she wanted to continue so that she could get it over with. [ 64 ] The second victim, A, aged 16 at the time of the offences, still blames herself for believing the young person’s story, for posing nude for him, and for having been close to the scene of the sexual assaults against Y. [ 65 ] After the revelations, she had frequent insomnia, frequently missed school in Secondary IV, and her relationships with her female friends were strained.

She received five months of weekly therapy. To this day, she still feels very fragile and finds it very difficult to cope with the pain that her mother is experiencing. One of the victims’ mothers criticized her for not protecting Y, because she was the oldest of the group. She says that she is afraid of seeing the young person again. [ 66 ] The third victim, B, who was 15 years old at the time, posed nude for the young person, and blames herself for failing to intervene to protect Y from the sexual assaults.

She says that she could never have predicted things because she was living under pressure, stress, and fear. [ 67 ] She explains that she cried a lot about the betrayal perpetrated by a boy in whom she had full confidence and whom she saw as a very good friend, or even a protective brother. Her sleep was disrupted by nightmares and stomach aches. Even after three months of weekly therapy and the passage of time, she continues to blame herself for being so naïve and for failing to protect Y.

She has a lot of anger toward the young person, and since she lives fairly close by, she is in constant fear of running into him. [ 68 ] During the July 6 hearing, a crime victim compensation specialist read the letter (P-4) that B wrote to tell the young person how much suffering he had caused her that he had ruined her life. The following excerpts are particularly telling: [ translation ] . . . you not only hurt me X, you killed a part of me, you stole a part of my adolescence, my youth . . . . . . . how many anxiety attacks I had and how many times I cried thinking about it.

Yes, I felt dirtied when taking the pictures . . . X, I will never forget what you did. I don’t think I will ever be able to forgive you. [ 69 ] The fourth victim, Z, who was 16 years old at the time of the offences, suffered a great deal because of the events. In October 2009, she was treated by the youth clinic at Hospital A for traumatic shock and insomnia. For one year, she had to take medication for depression, suicidal ideation, and insomnia. During the 2009–2010 school year, she isolated herself from her friends and cried a great

deal. [ 70 ] She appeared at the July 6 hearing and courageously, through her tears, read a letter of several pages in length describing in eloquent, emotional terms the two years of hell that the young person put her through.

She does not understand how the young person that the four girls liked and felt happy and confident with could have lied just to get a few kicks every night, and why he continued to lie to them even when he saw that they were haunted, shaken, and completely destroyed by his story. [ 71 ] In her letter, she states that she had thought of calling the police but changed her mind because he showed her evidence and impersonated a murderer’s voice, which made her tremble with fear.

She feels so guilty about having been there with A when he raped Y and not doing anything to prevent it that she no longer wants to live on this earth. She even attempted suicide in late October 2009 but fortunately was unsuccessful. She had to take antidepressants and sleeping pills for a year. [ 72 ] The following excerpt from her letter describes her suffering even better: [ translation] I wasn’t doing well, I didn’t want to live on this earth. It had gotten to that point. Guys disgusted me so much. I was too young for such an enormous realization about life.

I had just realized that people were mean and women were objects and I didn’t want to accept that. Not at 15 or 16. I didn’t want to be here anymore. So, one evening, I decided it was time for me to leave. I tried. It’s true. One evening in late October. I saw my blood running in the bathroom, and I smiled. I was finally happy, for the first time in a long time, but my attempt was unsuccessful. [ 73 ] Z still lives with emotional instability in relation to men, but clings to the hope that it will pass.

She adds, however, that she feels stronger despite her tribulations and feels better prepared for life, even though she still has progress to make and is working on it every day. VII. THE PARTIES’ SUBMISSIONS 1) The defence’s submissions [ 74 ] Counsel for the young person submits that the Crown’s application for a “serious violent offence” designation for the sexual assault against Y, which was made at the beginning of the sentencing hearing, is too late, and that the Court must dismiss it.

This application should have been made on November 2, 2010, the date of the young person’s guilty plea. [ 75 ] The Crown prosecutor notified defence counsel of her intentions only on May 2, 2011, after reading the pre-sentence report, which specifically discusses the harm suffered by the victims in the wake of the offences.

Counsel for the young person argues that the Crown prosecutor took her by surprise and is acting unfairly by using the information contained in the pre-sentence report as the basis for her application even though she had ample time, even before the guilty plea was entered on November 2, 2010, to obtain evidence from the victims with respect to the harm that they suffered or to cause that evidence to be obtained.

In her submission, the application, as made, respects neither the letter nor the spirit of the YCJA . [ 76 ] Furthermore, defence counsel submits that the only purpose of the application is to oppose the recommendation of deferred custody contained in the pre-sentence report, a recommendation that the Crown does not agree with. [ 77 ] In support of her position, defence counsel quotes several justices of the Court of Quebec, namely Leduc, [2] Proulx, [3] Grégoire, [4] Demers, 4 Kennedy 5 and Bastien JJ. 6 who have held that the Crown must make its application for an SVO designation after the finding of guilt but before the preparation of the pre-sentence report, because of the onerous consequences for the young person, notably the exclusion of deferred custody under paragraph 42(5)(

a) of the YCJA , and to enable the author of the pre-sentence report to fully elucidate the Court.

Bastien and Kennedy JJ. have further stated that it is unfair of the Crown to use information provided by the young person as support for the Crown’s application. [ 78 ] In the event that the Court allows her motion to dismiss the application for a determination that the offence is a “serious violent offence”, counsel for the young person asks that all of the recommendations made in the pre-sentence report be followed, namely, six months of deferred custody followed by eighteen months of probation, subject to the conditions contained in the report. [ 79 ] She argues, however, that if the Court dismisses her motion and determines that the sexual assault is a “serious violent offence”, the preclusion of a deferred sentence does not mean that a custodial sentence must be imposed.

On the contrary, she submits that the Court can still impose a non-custodial sentence, such as probation. [ 80 ] In particular, a twenty-four-month probation with very close supervision and restrictive conditions would be in keeping with the purpose and principles of the YCJA for the following reasons: - The young person has no prior convictions; - He has shown no signs of a behavioural disorder and had not committed any violent acts prior to these offences; - He has the support and supervision of his parents; - He has been rigorously complying with the very restrictive conditions of the undertaking under

section 31 of the YCJA ;

- He has been attending college since late August 2011; - He continues to play hockey on a serious basis; and - He has completed six months of psychological treatment and has commenced weekly therapy with the Centre de psychiatrie légale de Montréal on June 27 to deal with his sexual problem. [ 81 ] Not only did he plead guilty to six of the sixteen counts of the information, he also admitted to the authors of the pre-sentence report all of the facts alleged in the investigation report (P-1) with respect to the circumstances surrounding the commission of the offences. [ 82 ] Counsel for the young person submits that her client is neither a delinquent nor a sexual predator, but rather an asocial young man.

In fact, according to the psychiatric report, he needs psychotherapy that specifically addresses his sexual and relational problems, but the risk of sexual recidivism is currently low and can be assumed in the community. [ 83 ] Lastly, defence counsel submits that the young person has already received harsh punishment because he has had no cellular phone and no computer access for the last two years and is forbidden from leaving home on his own unless he is with his mother or father.

What would society gain from imprisoning a non-delinquent young person in the company of delinquent youth and putting him at risk of dropping out of school and dropping out of a sport that helps his self-esteem? 2) The Crown’s submissions [ 84 ] In response to the decisions cited by the defence regarding the time for filing an application to have an offence determined a “serious violent offence”, the Crown prosecutor cites the decisions of Lecompte 7 and Thibault JJ., 8 who held that the YCJA , and specifically subsection 42(9), does not state that such an application must be made before the pre-sentence report is prepared, but rather that it may be made at any time between conviction and sentencing, unlike an application to subject a young person to an adult sentence, which under the clear terms of subsections 64(2) and 64(4) can only be heard if the Crown has notified the young person and the court before the young person enters his or her plea.

Based on these decisions, the important thing is for the court to give the parties the opportunity to make their submissions before it renders a decision on the application. [ 85 ] Like Lecompte J. at paragraph 18 of his decision, she relies on the following statement made by Professor Nicholas Bala: Procedurally, the determination of whether an offence is a serious violent offence is to be made only after a finding of guilt.

It is submitted that the time for making such a determination is as a part of the sentencing stage for a particular offence, as the judge will then have full information about the offence. 9 [ 86 ] She specifies that the Court of Appeal has not yet ruled on the question, but that the Crown has appealed from Bastien J.’s decision and that the appeal is to be heard this coming December 7. [ 87 ] Furthermore, she was unable to find any appellate decision from another province clearly ruling on the issue, but she has submitted three decisions that deal with youth court jurisdiction over SVO designations, among other things. [ 88 ] First, in R. v.

J.S.M., 2005 BCCA 417 , the British Columbia Court of Appeal opined, at paragraph 40, that even if there has been a serious violent offence, the court may impose a term of probation (paragraph 42(2)( k )) or an intensive support and supervision program (paragraph 42(2)( l )). However, that Court added: There will be cases which will require a custodial sentence in order to satisfy sentencing purposes. The likelihood of a community-based sentence will diminish as the seriousness of the offence and the moral blameworthiness of the offender increase.

The aim of the sentencing provisions of the Act is to provide meaningful consequences for the young person and promote rehabilitation and reintegration into society. There will inevitably be cases in which those aims can only be achieved by the imposition of a custodial sentence. [ 89 ] Second, in R. v. K.I., [should have read] 2011 MBCA 11 , the Manitoba Court of Appeal, having found that the Crown had not proved a serious violent offence, did not have to make a decision at the time the application was made.

However, at paragraphs 29 and 30, the Court expressed the view that subsection 42(9) does not require that the application be made prior to a finding of guilt, but since the parties have the opportunity to effectively address the issue, the Crown should make its application at the earliest opportunity, “in a timely manner”. [ 90 ] Third, in R. v. K.C., 2011 ONCA 257 , the Ontario Court of Appeal did not address the time for making an application but stated that subsection 42(9) confers upon the Court the discretion not to make a “serious violent offence” designation even if the Crown has discharged is burden.

Hence, at paragraph 75, the Court states: On the contrary, the conclusion that the use of the word "may" in s. 42(9) gives a court discretion concerning whether to make an SVO designation appears consistent with the twin objectives of the YCJA of reducing the over-use of custody for young persons while holding young person’s accountable when they commit serious offences.

The discretion not to make an SVO designation allows a court to achieve the former objective when an SVO designation is unnecessary to achieve the latter. [ 91 ] According to the Crown prosecutor, the application was not brought before the pre-sentence report was written because she was unaware of the full scope of the psychological after-effects suffered by the victims, and in particular by Y, before it was written. Furthermore, her application for an SVO designation is consistent with the position that only a custodial sentence is in keeping with the purpose and principles of the YCJA .

In this regard, she notes that, in R. v. X. , 2011 QCCA 715 at paragraph 13 , the Quebec Court of Appeal, in substituting a six-month deferred custodial sentence for a 240-day sentence of custody and supervision, takes into account, inter alia ,, the fact, that the Attorney General did not ask the trial judge to consider the offence to which the young person pleaded guilty to be a violent offence.

[92] In addition, the Crown prosecutor states that, ever since the coming into force of the recent Criminal Code amendments, judgesmay no longer impose suspended sentences (comparable to deferred sentences) in respect of adults convicted of offences causing“serious personal injury”, including sexual assault charged by indictment. [93] That said, she submits that only a twelve-month sentence of open custody and supervision and an additional twelve months ofprobation would “hold him accountable” for the serious crimes that he has committed. [94] In support of her submissions, she relies primarily on the following elements: - The magnitude and duration of the scheme; - The means used, namely - threats; - manipulation; - exploitation of the victims’ naïveté and credulity; - abuse of confidence and betrayal; - The impact on the victims: stress, fear, anguish, and serious psychological after-effects; - The seriousness of the offences; and - The lengthy period of planning and premeditation. [95] Further, she submits that, based on the pre-sentence and psychiatric reports, the young person does not perceive the aspect ofviolence, control, and humiliation involved in the commission of the offences.

These reports also disclose that the young person does notrecognize the magnitude of the harm suffered by the victims, does not really show any remorse other than instances of malaise, andminimizes his responsibility by placing some of the blame on the victims. [96] In sum, she relates an unusual story involving an exceptional degree of planning. VIII. ANALYSIS AND DECISION 1) Serious violent offence

A) The concept of serious violent offence [97] Subsection 2(1) of the YCJA defines a “serious violent offence” as “an offence in the commission of which a young personcauses or attempts to cause serious bodily harm”. [98] The YCJA does not define “serious bodily harm”. However, subsection 2(2) states: “Unless otherwise provided, words andexpressions used in this Act have the same meaning as in the Criminal Code”. And

section 2 of the Criminal Code defines“bodily harm” as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merelytransient or trifling in nature”. [99] In R. v. C.D.; R. v. C.D.K., 2005 SCC 78 , [2005] 3 S.C.R. 668, Bastarache J. relies on the definition of “serious bodilyharm” given by his colleague Cory J. in [should have read] R. v. McCraw, (SCC), [1991] 3 S.C.R. 72 in defining thephrase “serious violent offence” in subsection 2(1) of the YCJA. At paragraph 20, Bastarache J. states: In R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, Cory J., writing for a unanimous Court, relied on this definition of “bodilyharm”, as well as the dictionary definition of “serious”, to interpret the meaning of “serious bodily harm” for purposes ofs. 264.1(1)(

a) of the Criminal Code as it was worded before February 15, 1995. Specifically, Cory J. held that “serious bodily harm” is“any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity,health or well-being of the complainant” (p. 81).

I see no reason why this definition of “serious bodily harm” should not also be used forpurposes of the YCJA, and, in particular, for purposes of the definition of “serious violent offence” that is found in s. 2(1) of the Act. [100] The fact that the victim suffered “serious bodily harm” or serious injury is an aggravating fact. If the young person contests thisaggravating fact, the rule is that the Crown must establish it beyond a reasonable doubt: R. v.

D.B., 2008 SCC 25, [2008] 2 S.C.R. 3 atparagraphs 79-80. [101] The victim of the sexual assault, Y, suffered major psychological injuries: stress, insomnia, panic attacks, confusion, anddifficulty trusting and confiding in others. Some of these injuries persist, even though more than two years have elapsed since theoffences were committed. [102] These injuries are inevitably the lot of people who are victims of rape or threats of rape. Cory J. aptly describes these injuries inMcCraw, supra, at paragraphs 32-23: Violence and the threat of serious bodily harm are indeed the hallmarks of rape.

While the bruises and physical results of the violent actwill often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harmcould certainly result from

an act of rape.

The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. . . . [ 103 ] The young person did not sexually assault the other three victims or threaten them with sexual assault. He did, however, intimidate, frighten and manipulate them to extort nude pictures and videos of them showing their genitals.

These crimes committed by the young person caused them psychological injuries as serious as those suffered by Y, the sexual assault victim. [ 104 ] Consequently, the Court finds that the Crown has proved these aggravating circumstances beyond a reasonable doubt and indeed, counsel for the young person does not contest this. Thus, the sexual assault victim has suffered serious bodily harm as a result of the sexual assault committed by the young person.

The evidence shows beyond a reasonable doubt that the young person also caused serious bodily harm to the other three victims in the commission of the offences of luring a child. The Crown has not asked, however, that those offences be designated “serious violent offences”.

B) The application for SVO designation [ 105 ] Even if the offence meets the definition of “serious violent offence”, there is more to be done, as Bastarache J. writes in R. v. C.D. , supra at paragraph 31 : Although the definition of “serious violent offence” is relatively straightforward, even if a young person’s actions would appear to satisfy it — i.e. even if a young person causes or attempts to cause serious bodily harm in the course of committing an offence — it does not automatically follow that he or she has committed a “serious violent offence”.

Instead, pursuant to s. 42(9) of the YCJA , the Crown must apply to have an offence designated as a “serious violent offence”, and the youth justice court to which the application is made is required to hold a hearing before it makes its decision: see Bala, Youth Criminal Justice Law , at p. 493. [ 106 ] For the purpose of analysis, it is helpful to reproduce the English and French versions of subsection 42(9): 42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly. 42(9) Le tribunal pour adolescents peut, à la demande du procureur général, après avoir donné aux parties l’occasion de présenter des observations, décider que l’infraction dont l’adolescent a été déclaré coupable est une infraction grave avec violence et faire mention de ce fait sur la dénonciation ou l’acte d’accusation . [ 107 ] The French version does not state when the Attorney General is to apply, whereas the English version clearly states that this is done “after a young person is found guilty of an offence”. [ 108 ] Both versions provide that the court “may”, not “shall”, declare that the offence is a serious violent offence, thus conferring discretion, and both versions state that the court may make the determination only after giving the parties the opportunity to be heard with respect to the application. [ 109 ] In neither version does Parliament require the Attorney General to give the young person and the court advance notice in writing.

In short, the Attorney General need not actually notify the young person; he must simply apply to the court, which must adhere to the audi alteram partem rule before disposing of it. [ 110 ] Naturally, it is desirable for the Attorney General to notify the young person of the request in advance so that the young person can respond effectively at the time of the sentencing hearing, thereby avoiding an adjournment that could be prejudicial to the young person and constitute an abuse of the Court’s resources. [ 111 ] The situation involving the subjection of a young person to an adult sentence under subsection 64(2) in particular, is entirely different.

The English and French versions of the applicable provision read as follows: 64(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), or by establishing that the offence is a presumptive offence within the meaning of paragraph (

b) of the definition “presumptive offence” in subsection 2(1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence. 64(2) S’il entend obtenir l’assujettissement à la peine applicable aux adultes soit en présentant la demande visée au paragraphe (1), soit en prouvant que l’infraction est une infraction désignée visée à l’alinéa b ) de la définition de ce terme au paragraphe 2(1), le procureur général doit, avant la présentation du plaidoyer ou, avec l’autorisation du tribunal, à tout moment avant le début du procès, aviser l’adolescent et le tribunal pour adolescents de son intention de demander l’assujettissement . [ 112 ] Under this provision, unlike subsection 42(9), the Attorney General’s application must be made in writing, because it requires “making an application”, which is different from saying simply “on application”, or in French, “ en présetant une demande ” and not

simply “à la demande”. [113] Moreover, the Attorney General must “give notice” to the young person and the court, and this must be done before the plea isentered, or, with leave of the court, at any time before commencement of the trial. Under subsection 4(6) of the Criminal Code,applicable to the YCJA by virtue of

section 140 of the Act, the Attorney General’s notice must be given in writing: 4(6) For the purposes of this Act, the service of any document and the giving or sending of any notice may be proved (

a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sentit; or (

b) in the case of a peace officer, by a statement in writing certifying that the document was served or the notice was given or sent by thepeace officer, and such a statement is deemed to be a statement made under oath. [114] The young person and the court must be given formal notice, because, upon the young person’s appearance (section 32), thecourt must notify him that he might be subject to an adult sentence, and that he may choose which court to elect to be tried by, with orwithout a preliminary inquiry, depending on his choice of forum. [115] In an application for an SVO designation, the young person does not have to make this election, and despite the seriousconsequences of a designation, Parliament does not require the court to notify the young person of the application upon his appearance.In exercising its discretion as to whether to designate the offence an SVO, however, the court must take into account the consequences ofa designation on the young person. [116] In addition, the Attorney General’s decision as to whether to apply for a determination that an offence is a “serious violentoffence”, like the decision as to whether to apply for an adult sentence, comes within the Attorney General’s prosecutorial discretion andis not merely a strategic decision. [117] In R. v.

Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, Binnie J., in his analysis of this prosecutorial discretion, writes as follows atparagraphs 166–168: The trial judge in this case was careful not to understate or diminish the broad scope traditionally and properly afforded to prosecutorialdiscretion. Courts are very slow to second-guess the exercise of that discretion and do so only in narrow circumstances. In R. v.

Beare, (SCC), [1988] 2 S.C.R. 387, for example, the Court noted that a system which did not confer a broad discretion on lawenforcement and prosecutorial authorities would be unworkable, per La Forest J., at p. 410: Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkablycomplex and rigid.

Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, asprosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment orsummary conviction, launch an appeal and so on. Still, the corollary to these extensive discretionary powers is that they must be exercised with objectivity and dispassion. This principlehas found its way into the Canadian Bar Association’s Code of Professional Conduct (1988); see

chapter IX, “The Lawyer as Advocate”,s. 9 (Duties of Prosecutor): The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. Because the exercise of prosecutorial discretion is, within broad limits, effectively non-reviewable by the courts, it is all the moreimperative that the discretion be exercised in a fair and objective way.

Where objectivity is shown to be lacking, corrective action may benecessary (as here) to protect what O’Connor referred to as “the integrity” of the criminal justice system. [118] Since it is important that this discretion be exercised in a fair, objective, and impartial way, the Crown prosecutor cannot befaulted for waiting to find out about the elements contained in the pre-sentence report before making a decision that carries heavyconsequences for the young person. [119] In fact, at all times, the parties and the Court take all the elements of a pre-sentence report into account, including the elementsdisclosed by the young person himself, even if some of them constitute aggravating factors (involvement in crimes not prosecuted,violent behaviour unrelated to the offence, drug and alcohol use, minimization of responsibility, etc.) [120] Subsection 40(10) of the YCJA specifically provides that statements made by the young person in preparation of a pre-sentencereport are not admissible in evidence against him in civil or criminal proceedings, but are admissible for the purposes of sentencing. [121] That said, the Court does not see what the young person could have said or refrained from saying to the authors of the reportwith respect to the harm caused to the victims had the Crown made its intentions known earlier. [122] Paragraph 40(2)(

e) stipulates that the report includes “any information that may assist the court in determining under subsection39(2) whether there is an alternative to custody, where applicable”.

A reading of the pre-sentence report discloses that it contains theseelements, even though the Crown had not yet applied for an SVO designation when the report was prepared. [123] Furthermore, in her testimony on July 8, Hélène Bois maintained her recommendation of deferred custody, even after theCrown’s announcement at the May 6 hearing. [124] In short, even if the Crown had shown its colours before the report was prepared, the authors of the report would have providedthe Court with the same insight, since they could not prejudge the Court’s decision as to whether to designate the offence a “seriousviolent offence” or not.

[125] Lastly, after the Crown’s application, the Court gave the Crown and the young person the opportunity to make all of theirsubmissions at the May 6, July 6, July 8 and September 9, 2011, hearings. At these hearings, the young person did not contest theCrown’s evidence regarding the serious harm caused to the four victims in the commission of his crimes. [126] Under the circumstances, the Crown’s application for an SVO designation is admissible because it is in keeping with subsection42(9) of the YCJA. The issue now is this: Should the sexual assault offence be designated a “serious violent offence”, and should theinformation be endorsed accordingly?

C) The exercise of discretion [127] As this Court has stated earlier, even where the Crown has discharged its burden of proving beyond a reasonable doubt thatserious bodily harm was caused to the victim, a youth court, under subsection 42(9), “may” – not “shall” – determine that the offence is a“serious violent offence”. [128] As with any discretion exercised in a sentencing context, what are the principles and factors that the court must take intoconsideration in exercising the discretion conferred upon a court in exercising the discretion conferred upon it by subsection 42(9)?According to S.C.

Maclean J. in R. v.

E.F., [should have read] 2007 ONCJ 113 at paragraph 171, a court “should focus primarily on thenature of the offence and the consequences or potential consequences on the victim” but may also, among other things, take thefollowing factors – which this Court will take the liberty to summarize –into account: - The degree of harm caused to the victim and the community; - Whether the harm was foreseeable; - Whether the victim is vulnerable; - Whether a weapon was used and the type of weapon; - The context in which the offence was perpetrated and the way in which the offence was committed; - Whether the offence was premeditated as opposed to impulsive; - Whether there were threats of violence; - Whether there was gratuitous violence; - Whether the offence involved a reckless disregard for the safety of others; - If there was provocation, whether the response to that provocation was reasonable; - The mental state of the accused at the time of the offence; and - The penalty that would be imposed on an adult for the same offence. [129] However, at paragraph 172, S.C.

MacLean J. expresses the view that the court, in exercising its discretion, should not considerthe elements summarized below: - That the SVO designation precludes deferred custody as an option and any other effect that the designation would have onthe sentence; - The steps taken by the offender since the offence was committed, such as counselling; - Whether the offender is remorseful or not; - The offender’s background, personal circumstances, and what kind of family or community support he has; - The offender’s age, unless directly relevant to the circumstances of the offence; - The type of judicial interim release that the accused has been on, and whether there have been any breaches of thatrelease. [130] In R. v.

K.C., supra at paragraphs 76–77, the Ontario Court of Appeal held that the wording of subsection 42(9) is similar to thatof the former subsection 753(1) of the Criminal Code concerning dangerous offenders, which stated that a judge “may …. find theoffender to be a dangerous offender”. The Court notes that, according to the Supreme Court of Canada in R. v.

Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at paragraphs 27-28, the court’s discretion to find an offender a dangerous offender must be guided by thesentencing principles set out in the Criminal Code, and that “one factor that a sentencing judge must consider is the possibility that thesanctions available pursuant to the long-term offender provisions would be sufficient to achieve the objectives that the dangerousoffender provisions seek to advance”. [131] In light of these principles, the Ontario Court of Appeal, at paragraphs 78–80, sets out three factors that a court must consider inexercising the discretion conferred upon it by subsection 42(9) of the YCJA: Similarly, it seems to me that at least one factor a sentencing judge must consider in deciding whether to designate an offence as a seriousviolent offence is whether the consequences of an SVO designation are necessary to achieve the purposes of youth sentencing.Depending on the circumstances of the particular case, this in turn could bring into play the whole panoply of factors relevant to youth

sentencing. In this case, one such factor could be whether the appellant actually foresaw that the offences in which he participated would likely causebodily harm that was more than transient or trifling. This factor is relevant because it addresses the appellant's level of moralblameworthiness for the serious bodily harm caused by the offences. Another such factor could be the appellant's efforts at rehabilitation between the offence and the date of sentencing.

If, in the end, asentencing judge is satisfied that it is unnecessary to impose an SVO designation to achieve the purpose of holding "a young personaccountable ... through the imposition of just sanctions that have meaningful consequences", it seems to me that it would be open to thesentencing judge to decline to make an SVO designation. [132] Thus, even if a young person has committed a serious violent offence, subsection 39(2) of the YCJA applies, and “a youth justicecourt shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives tocustody”. [133] Furthermore, in analyzing and comparing the terms “violent offence” and “serious violent offence”, Bastarache J., in R. v. C.D.,supra at paragraphs 23-24, explains that the fact that paragraph 42(5)(

a) of the YCJA precludes a court from imposing deferred custodyfor serious violent offences “suggests that Parliament intended that young persons who commit serious violent offences should generallyreceive actual — i.e.: not deferred — custodial sentences”. [Emphasis added.] [134] In this regard, [should have read]

section 174 of Bill C-10, the Safe Streets and Communities Act, repeals the designationprocedure and prohibits youth courts from imposing deferred custody on a young person who is convicted of an offence in thecommission of which the young person causes or attempts to cause serious bodily harm. 2) Decision on the SVO designation and the appropriate sentence [135] In light of the comments of Bastarache J., if this Court determines that the sexual assault offence committed by the young personagainst victim Y is a serious violent offence, the decision to that effect precludes not only deferred custody, but also any other non-custodial sentence. [136] Are those consequences necessary to achieve the purpose of the YCJA, as set out in

section 38, namely, to “hold the youngperson accountable for an offence”, and according to the French version, “faire répondre celui-ci de l’infraction qu’il a commise”?Under these provisions, the objective is attained by imposing sentences that include the following characteristics: - They are just and have meaningful consequences (the French version refers to “perspectives positives”); - They promote the young person’s rehabilitation and reintegration into society; and - They contribute to the long-term protection of the public. [137] Furthermore, since the “. . . object and scheme of the YCJA, as well as Parliament’s intention in enacting it, all indicate that theYCJA was designed, in part, to reduce over-reliance on custodial sentences . . .” (see R. v.

C.D., supra, at paragraph 50, per BastaracheJ.), can this objective be achieved while holding the young person accountable for the crime that he committed? [138] The purposes of accountability and of reducing over-reliance on custodial sentences are to be interpreted in light of theprinciples set out in

section 3 and subsection 38(2) of the YCJA. The principles that specifically apply to the present case are as follows: 38(2)(

c) the sentence must be proportionateto the seriousness of the offence and thedegree of responsibility of the young personfor that offence; 38(2)

c) la peine doit être proportionnelle àla gravité de l’infraction et au degré deresponsabilité de l’adolescent à l’égard del’infraction;38(2)(

e) subject to paragraph (c), thesentence must (iii) promote a sense of responsibility in theyoung person, and an acknowledgement ofthe harm done to victims and thecommunity. 38(2)

e) sous réserve de l’alinéa c), la peinedoit : (iii) susciter le sens et la conscience de sesresponsabilités, notamment par lareconnaissance des dommages causés à lavictime et à la collectivité. [139] In R. v. A.O., [should have read] (2007), 2007 ONCA 144 , 84 O.R. (3d) 561 at paragraph 45, the Ontario Court ofAppeal held that the expression “meaningful consequences” in subsection 38(1) “… cannot be synonymous with rehabilitation andreintegration.

Parliament has used the different terms, and is presumed to have intended different meanings …”, but ascribes to“accountability” the same meaning as Lamer J. ascribes to “retribution” in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500at paragraphs 80-81: However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing hasoften been questioned as a result of its unfortunate association with "vengeance" in common parlance. See, e.g., R. v. Hinch andSalanski, supra, at pp. 43-44; R. v. Calder (1956), (MB CA), 114 C.C.C. 155 (Man. C.A.), at p. 161.

But it should beclear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retributionas a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilizedsystem of sentencing. See Ruby, Sentencing, supra, at p. 13. Vengeance, as I understand it, represents an uncalibrated act of harm uponanother, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal

context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects 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. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . As R.

Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: “The retributivist insists that the punishment must not be disproportionate to the offender's deserts.” Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender . The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct .

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. . . . [ 140 ] The Ontario Court of Appeal adds, at paragraph 47: 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" (underlining omitted).

We see no other rational way for measuring accountability. [ 141 ] In this case, the young person sexually assaulted Y on two occasions. To achieve this, he used manipulation, intimidation, blackmail, and threats of bodily harm over a lengthy period. In addition, he used his talents and his standing in her eyes to abuse her trust, naïveté, and credulity. [ 142 ] The young person caused the victim serious harm, which she continues to suffer even two years after the offences. He persisted in his Machiavellian plan, even when faced with the victim’s suffering and anguish.

After the victim’s revelations, he left her with her anguish and fear rather than putting an end to them. [ 143 ] In R. v. McCraw , supra at paragraphs 30–31 , Cory J. describes the inherent violence of rape in the following terms: It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women rape under any circumstance must constitute a profound interference with their physical integrity.

As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically

an act of violence. See K. Mahoney, " R. v. McCraw : Rape Fantasies v. Fear of Sexual Assault" (1989), 21 Ottawa L. Rev. 207, at pp. 215-16. It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with

an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant's will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse.

The assailant has imposed his will on the victim by means of actual violence or the threat of violence. [ 144 ] The presumption of diminished moral culpability for young persons is rebuttable (see R. v. C.D. at paragraph 45 , per Bastarache J.). Here, the young person is an intelligent young person from a good family, but who used these advantages and his knowledge of the victim’s vulnerability to extort sexual relations from her, without concerning himself with the harm that he knew he was causing her. His degree of moral blameworthiness, to use the words of Lamer J. in R. v.

M. (C.A.) , is consequently very high. [ 145 ] The young person committed crimes against the other three victims, causing them equally serious harm. One of them even tried to commit suicide, disgusted with life and with men because of what the young person put her and her three friends through. [ 146 ] In addition, when the young person met with the authors of the pre-sentence and psychiatric reports, he initially tried to minimize his responsibility and then failed to recognize its full extent, in particular as regards the elements of control, coercion, and violence, and the degree of harm done to the victims.

He feels that he has already paid his debt to the victims and the community because he [ translation ] “feels like he is in jail” due to the very restrictive conditions of the undertaking under

section 31 of the YCJA to which he has been subjected since October 5, 2009. In his view, a custodial sentence would therefore be disproportionate, and an obligation to perform community service would be a reasonable and sufficient sentence. Further, having completed a six-month course of therapy, he feels that he no longer needs any help.

His parents share his position. [ 147 ] All this to say that the young person still does not hold himself accountable, despite a significant police investigation, his arrest, his appearance to answer 16 charges, each of which is punishable by 10 years of imprisonment in the case of an adult offender, his detention for five days, the restrictive conditions of his undertaking, and six months of psychological treatment. [ 148 ] The therapy undertaken by the young person on June 27, 2011, following the Crown’s May 6 application for an SVO designation and for placement in custody, seems more like an effort to avoid a custodial sentence than an effort to solve a sexual and relational problem identified by the authors of the psychiatric report. [ 149 ] Consequently, this Court finds that the sexual assault offence is a “serious violent offence” and endorses the information accordingly, because a custodial sentence is the only punishment that complies with the purpose and principles of the YCJA . [ 150 ] For the offences as a whole, a sentence of open custody and supervision for twelve months, followed by twelve months of probation subject to the conditions set out in the pre-sentence report, is a “just and appropriate” sentence, because it reflects the

seriousness of the offences, the serious consequences for the four victims, and the young person’s high degree of responsibility and moral blameworthiness. [ 151 ] This custodial sentence is certainly harsh punishment, especially for a teenager, but when it is “just and appropriate”, it can not only help to hold him accountable, but also help to rehabilitate him and reintegrate him into society. [ 152 ] In fact, subsection 83(1) of the YCJA states that the purpose of the custody and supervision scheme applicable to young persons is to contribute to the protection of society, notably by providing appropriate programs that assist their rehabilitation and reintegration into the community. [ 153 ] To promote this rehabilitation and reintegration, paragraph [should have read] 91(1)(

b) states that the provincial director may, in addition, release the young person on the days and during the hours that the he specifies in order that the young person may attend school or any other educational or training institution. [ 154 ] The young person is not fully a

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