Her Majesty the Queen - v. -, 2020 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2020 SKPC 45 Date: October 28, 2020 Information: 991113079 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.V. Appearing: Ms. Desirée Steele For the Crown Mr.

Adam Fritzler For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . SENTENCING DECISION D. KOVATCH , J BACKGROUND

[ 1 ] The accused entered a guilty plea to one charge of sexual assault, contrary to

section 271 of the Criminal Code . The Crown proceeded by Indictment. FACTS [ 2 ] The accused was born on September 9, 2002. He turned 18 years of age just days prior to the sentencing submissions. The offence was committed on May 26, 2019, when he was 16 years old. [ 3 ] The Court was not given the exact date of birth of the young girl who was the victim of the sexual assault. However, the Court was advised that she was 13 years old on the date of the incident.

She is approximately three years younger than the accused. [ 4 ] Crown counsel advised that the complainant and accused had known each other for approximately a year prior to this incident because the accused previously dated the complainant’s cousin and they stayed in touch after that relationship ended. They knew each other’s ages. [ 5 ] On May 26, 2019, the complainant went to the accused’s home. The accused’s parents were not present. The complainant asked for a beer. It is not clear if there was no beer present, or if the accused suggested that she drink vodka.

In any event, the complainant began drinking vodka, and apparently consumed a number of drinks. During this time, they sat in the hot tub, listened to music and danced. According to the Crown, the accused indicated he wanted to have sex. The complainant said that she was very drunk, and it would not be right. At some time however, they did have sexual intercourse. [ 6 ] Later, the accused drove the complainant home. She arrived home at approximately 6:00 p.m. According to the Crown she immediately went to bed and slept until about seven o’clock the next morning.

She then told her mother of the incident, and the matter was reported to police. She told police that she had little recollection of the events, and was confused. [ 7 ] The day following the incident, she sent a text message to the accused asking him about them having sex. The accused apologized, and indicated that he did not know that she was intoxicated. [ 8 ] Crown counsel said that the complainant indicated she did not consent to sex. The accused supplied her with alcohol, she became very intoxicated, and he had sex with her.

The Crown argued that this was a very serious and violent sexual assault and the complainant has suffered significant psychological trauma as a result of the incident. Crown Counsel submitted that while the accused has no criminal record, the Court’s sentence must impose meaningful consequences. He must be held accountable. Deterrence and denunciation are of some importance. Because this is a violent offence, the gateway provisions under

section 39 of the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ] are open, and actual custody is available. Further, that a deferred custody sentence is not available. The Crown asked for a sentence of 120 days of open custody, 80 days of actual custody, followed by 40 days of community supervision. Following the custodial portion of the sentence, the Crown asked for an additional 16 months of probation. [ 9 ] Defence counsel advanced a significantly different version of the facts. The accused maintained that the complainant was a willing participant in intercourse, and this was consensual sex.

He indicated that the accused would never have participated in sexual intercourse, if the complainant was not consenting. Further, that the accused was completely unaware of the provisions contained in

section 150.1 of the Criminal Code . According to defence counsel, the only reason the accused entered a guilty plea to this charge is because

section 150.1(1) specifically provides that the consent of this complainant to sex gives him no defence to the charge. [ 10 ] Based on this version of the facts, defence counsel says the accused did have insight and is unlikely to be involved further with the law. He points to the reports indicating that the accused has a low probability to reoffend. He speaks of the accused’s good record in school, and a good and supportive home. He argued that the court should adopt the least restrictive sentencing alternative.

He pointed to the positive future that the accused has before him, and stated that nothing can be gained from a custodial sentence. Further, that any problems that the accused has can be addressed by probation and programming. Defence suggested this matter be dealt with by way of probation for a period of 18 months. FACTUAL FINDING

[ 11 ] Because of

section 150.1 of the Criminal Code , consent provides no defence to this charge. There would have been a defence of consent had the accused been less than two years older than the complainant. In the present case, he was three years older. [ 12 ] In my view however, the Crown’s version of the facts is more serious than the accused’s version of the facts.

Forced intercourse, or intercourse where the complainant is rendered unable to consent is a more severe violation of the complainant with greater potential for harm. [ 13 ] The Crown did not request a sentencing hearing in order to prove these aggravating factors beyond a reasonable doubt. I believe the law is clear that without such a sentencing hearing, I am obligated to pass sentence on the basis of the accused’s version of the facts.

The Crown has not proved the aggravating factors beyond a reasonable doubt. [ 14 ] As a result, I will pass sentence on the basis of the complainant being a willing participant to the sexual act. DEFERRED CUSTODY NOT AVAILABLE [ 15 ] Counsel are agreed that because of section 42(5) of the YCJA , a sentence of deferred custody is not available. That

section provides that deferred custody is not available for an offence where a young person “causes or attempts to cause serious bodily harm” to another. Serious bodily harm can include either physical or psychological harm. Sexual assault inflicts significant psychological harm upon the victim. As a result, deferred custody is not available on a charge of sexual assault. [ 16 ] It appears that Parliament has removed a midway option between a sentence of actual custody and a community based sentence like a probation order. It is clear that I am left with but the two options, actual custody or probation. ANALYSIS-DETERMINATION OF THE APPROPRIATE SENTENCE [ 17 ]

Section 39 of the YCJA is often referred to as the gateway provision for custodial sentences. Section 39(1) says “a youth justice court shall not commit a person to custody…” unless the accused falls into one of the four subsections, (a)-(d). Subsection (

a) speaks of the accused having committed a violent offence. The courts have determined that sexual assault is a violent offence. As a result, a sentence of actual custody is a possibility in this situation. However, the case law is also clear, that the mere fact that one of these gateway provisions has been met, does not mean that custody will automatically follow. The Court must go on to determine whether a custodial sentence is appropriate, and must impose a sentence that reflects due consideration of the other principles established under the YCJA .

The Crown argues that the sentence must impose meaningful consequences upon the accused. Further, that this imports, at least to some degree, the principles of denunciation and deterrence. In brief, the Crown argues that the actions of this accused are so severe that meaningful consequences must be imposed which will deter him and others from acting in a similar fashion. In R v P.R. , 2018 SKCA 27 , 365 CCC (3d) 120 [ P.R. ] the Court dealt with the sentencing of an individual for a charge of sexual assault. At paragraph 78, the Court stated: This was a major sexual assault that included sexual intercourse.

The victim was 11 years old and was the appellant’s niece. The sexual assault caused the victim serious psychological harm. Generally speaking, major sexual assaults such as this merit a custodial sentence in order to reflect the seriousness of the offence and to hold the youth accountable unless there are unique circumstances that dictate a non-custodial sentence is reasonable in the circumstances. [ 18 ] The Court went on to conclude that there were exceptional circumstances present.

It dealt with the matter by way of a probation order. [ 19 ] While it is important that every youth be held accountable for their offences, and meaningful consequences be imposed, the courts always note that sentencing is an individualized process. Further, when sentencing any youth, the paramount factor is the rehabilitation of the accused and his reintegration in society.

In this case, in my view, there exists a conglomerate of factors, which taken together, support or justify this matter being dealt with by a community based sentence. [ 20 ] In this case, the accused underwent a court ordered adolescent sexual offence risk assessment, and a report was prepared by

Child and Youth Mental Health. A complete pre-sentence report (PSR) was also prepared. On balance, both of these reports are fairly positive. The risk assessment report states in part as follows: The balance of Protective, Risk and Neutral factors on the PROFESOR places B.V. in the category 1of 5: Predominately Protective .

This would suggest that he requires a minimal intervention to develop healthy sexual relationships in the future and to prevent future abusive behaviour. [ 21 ] At page 10 of the report, the writer stated: The assessment indicates that B.V. currently exhibits predominantly protective factors that would mitigate his risk of reoffending sexually. The report goes on to recommend that the accused receive the adolescent sexual offence specific treatment program and individual counselling if necessary. [ 22 ] The PSR assessed the accused as level 1 or the lowest risk of reoffending generally.

It further indicated that the accused has a number of major strength areas and: “No major risk concerns were identified by the completion of the assessment.” [ 23 ] The PSR further indicates that the accused has had very good attendance in high school and he is doing well there, maintaining an average between 70% and 80%. He has been active in a number of athletic activities. He has also maintained part time employment. He hopes to continue with his education, and to become a police officer. The report also notes that the accused has a strong and supportive family.

Further that he will participate in any treatment or counselling that the Court may direct. [ 24 ] The writer of the PSR did not recommend any particular sentence, and expressly left that matter to the court. The writer did however make specific recommendations regarding the conditions for the community based portion of the sentence. [ 25 ] In my view, all of the above mentioned aspects identified from the two reports are generally positive in nature, and speak to this matter being dealt with by way of a probation order that is rehabilitative in nature.

In the concluding comments from defence counsel, he stated that any problems identified for this accused can be dealt with by way of appropriate programming and counselling. Nothing can be gained from a custodial sentence. I agree with these statements. [ 26 ] In R v K.(K.O.), 2001 MBCA 57 , 156 Man R (2d) 42 the Manitoba Court of Appeal also considered a young offender, charged with a sexual assault offence. They specifically considered the negative consequences of the imposition of a custodial sentence. At paragraph 49, the Court stated as follows: These are most serious offences.

There is nothing that can be said to minimize the cruelty of a sexual assault. While five months open custody may be an appropriate or even a lenient sentence for this offence, it was not fit for this offender. The court was advised that the appellant was placed at Agassiz to allow him to participate in a sexual offence program that is offered at that institution. Even if he could have earned educational leaves, he would have had absolutely no opportunity to continue his education in a normal school setting.

The defacto result of this sentence is an undue emphasis upon the principles of denunciation and deterrence, with little or no emphasis on rehabilitation. At this young age, the appellant’s rehabilitation will be society’s greatest protection against further criminal behaviour.

There is no question that this offender requires counselling on the issues of sexual behaviour and respect for others and requires guidance towards his rehabilitation. [ 27 ] As mentioned above, in P.R ., the Saskatchewan Court of Appeal determined that extraordinary circumstances were present, and imposed a community based sentence for sexual assault because of the extraordinary circumstances of that individual. In that same decision, in paragraphs 61 to 76, the Court specifically considered and addressed amendments made to the YCJA in 2012.

The Court specifically considered and addressed the importance of denunciation and deterrence, relative to the other sentencing principles established under the YCJA . The Court made the following statements at paragraph 62: The sentencing principles for youth pursuant to the YCJA are enumerated in the Act’s

Preamble, its Declaration of Principle in

section 3,

and the detailed sentencing principles in

section 38. The constant theme woven through these provisions is that a youth sentence seeks to ensure meaningful accountability through restorative sentences, as opposed to reliance on incarceration, to promote the long term protection of the public. And in paragraph 65: The principles in

section 3 indicate that “fair and proportionate accountability” is the central principle for the sentencing of youth offenders and advocate for restorative rather than custodial sentences to achieve fair and proportionate accountability. And at paragraphs 74 and 75: According to Bala and Anand : “the 2012 amendments add specific deterrence and denunciation as sentencing factors for youth offenders, but these factors are to be considered in a fashion consistent with the principle of ‘diminished moral blameworthiness’ in

section 3, and hence are of lesser importance than they are for adults” (at 128). In my view, the YCJA establishes a sentencing philosophy that promotes meaningful consequences and ensures accountability through rehabilitation and reintegration methods, as opposed to focusing on denunciation and deterrence to impose custodial sentences.

Although denunciation and deterrence may be considered in determining the appropriate sentence for a youth offender, they must not be the sole objectives considered and they must not take paramountcy over the other sentencing principles contained in the YCJA . (emphasis added) [ 28 ] This young person, B.V. has committed a serious criminal offence. He provided a young person with alcohol and used her for his sexual gratification.

He has caused considerable harm to her and to her family. [ 29 ] B.V. has expressed some remorse for his actions, and indicates that he has some understanding of the harm that the victim has suffered. B.V. and his family have indicated a willingness to participate in sexual offender counselling. [ 30 ] As mentioned above, there is much to be said that is positive for this accused. He has no other involvement with the criminal law. It would appear that his actions on the date of this offence were an aberration and do not reflect who he really is.

He comes from a strong and supportive family; he is doing well in school and athletics; has career aspirations, and is employed on a part-time basis. There could be significant negative consequences by disrupting all that is positive in his life by the imposition of a custodial sentence. The sentencing principles established by the YCJA and the case law indicate that the principle of denunciation and deterrence should not be given precedence or paramountcy over a rehabilitative sentence.

In my view, all of the above speaks predominantly in favour of dealing with this matter by way of a probation order and rehabilitative sentence. [ 31 ] On the sole charge that B.V. has entered a guilty plea to, I place him on probation for a period of 18 months, with the following conditions: 1. He will report to court when required to do so; 2. He will report to a youth worker at 200-1942 Hamilton Street, Regina, Saskatchewan, by phone at 306-787-0591, within two working days. He will continue to report and be supervised as told to do so by the youth worker or designate assigned to him. 3.

He will live at a residence approved by the youth worker or designate. 4. He will not change that address without the prior permission of the court or the prior permission of the youth worker or designate. Unless and until further directed, that approved residence shall be his parents’ home. 5. He shall participate in assessments and complete programming for sexual offending, and personal counselling, as told to do so by the youth worker or designate. 6. He shall have no contact of any kind in any way, directly or indirectly with the victim, S.C., except through a lawyer, community youth worker or designate. 7.

He shall not be at the residence, workplace or school of the victim, S.C., except as allowed by the community youth worker or designate. 8. He shall not be responsible for or have any unsupervised contact with children/youth age 13 years and under, unless incidental in

the community for things like employment; until he has completed programming and received approval from the youth worker or designate. [ 32 ] This is a primary designated offence mentioned in

section 487.04 of the Criminal Code . Accordingly, there will an order directing B.V. to report to the front desk of the Regina Police Service no later than 4:00 p.m. on Friday November 6, in order that he may provide to the authorities bodily substances suitable for forensic DNA analysis and registration in the DNA data bank. [ 33 ] In addition, pursuant to

section 109 of the Criminal Code and

section 51 of the YCJA , there will be an order prohibiting B.V. from possession of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of two years beginning on today’s date and ending two years from today. Dated at the City of Regina, in the Province of Saskatchewan, this 28 th day of October 2020. __________________________ D. Kovatch, J.