Her Majesty the Queen - v. -, 2013 SKPC 202

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 202 Date: December 10, 2013 Information: # 34479227 Location: Saskatoon ___________________________________________________________________________________ Between: Her Majesty the Queen - and - C.N.A.C. Appearing: J. Knox For the Crown N. Simm, Q.C. 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 WHELAN , J ____________________________________________________________________________________ Introduction [ 1 ] There were two issues: the appropriate sentence and whether the mother’s home was appropriate for the completion of that sentence.

The latter issue was complicated by the criteria for placement of C.N.A.C. (also referred to as C. herein) in the 16/17 year old program of the Ministry of Social Services. [ 2 ] C.N.A.C. pled guilty to the following offences that took place on May 14, 2013, when he was 16 years of age: 1) Sexual assault s. 271 Criminal Code . 2) Breach of probation, no contact, s. 137 Youth Criminal Justice Act . [ 3 ] It was agreed that a sentencing conference would be beneficial. The complainant did not attend; his mother and grandmother observed. C.N.A.C.’s mother attended.

His youth worker, psychologist, family service worker, community service worker, teacher and a number of other employees or supervisors from the Ministries of Social Services and Justice were present.

The donference was facilitated by Robert McGavin of the Restorative Circles Initiative. [ 4 ] C.N.A.C. sexually assaulted a child, age 7, one of the two children against which he offended in 2010 and for which he has prior findings of guilt, entered in September of 2011, for sexual touching and invitation to sexual touching, contrary to sections 151 and 152 of the Criminal Code . [ 5 ] C.N.A.C. is cognitively impaired, with a Full Scale IQ of 69. He has undergone a modified sex offender treatment under the supervision of his youth worker and psychologist.

He was said to have participated well and understood the modified program except that he was not forthcoming with personal information and did not share his thoughts and feelings. Reports from his modified school program were overall very positive; however his attendance fell off dramatically about the time he re-offended. [ 6 ] A central issue over time has been the suitability of the mother’s home, which is where he resided while on probation for the 2010 offences and at the time that he re-offended.

During the course of the sentencing conference, mother and son, consistent with complaints found in the reports, deflected blame and minimized responsibility. C.N.A.C.’s mother evidenced an approach that was counterproductive to his accepting full responsibility for his actions; hence the concern that so long as he resided in that environment, he would continue to limit his acceptance of responsibility and would decline to discuss the circumstances of his offending.

C.N.A.C. was asked to discuss his responsibility after his mother spoke and he adopted much the same approach as his mother. [ 7 ] There have been ongoing concerns as to the mother’s ability or willingness to properly supervise C.N.A.C. in the community. In her 2011 psychological risk assessment, Dr. Legault recommended that C.N.A.C. be placed outside his mother’s home. This led to inquiries of the Ministry of Social Services about placement pending sentence and attendance of representatives at the sentencing conference.

Decision was adjourned following the sentencing conference and pending the receipt of an assessment from the Ministry concerning the parental capacity assessment of the mother, shared with the Court on December 3, 2013. [ 8 ] C.N.A.C. was on remand from July 31, 2013, the date the Information was sworn to December 4, 2013 (127 days) at which time he was released on an undertaking. Four months is a significant period of remand time for any youth, but especially one of C.N.A.C.’s age and vulnerability.

[9] Having regard to the sentencing principles in the YCJA and the relevant circumstances elaborated upon within this decision,including his reduced moral blameworthiness by virtue of his age and cognitive impairment, the appropriate disposition is probation for aperiod of 24 months, on terms similar to those that he has been subject to in his previous probation order and the current undertaking.

It isappropriate that it include a provision for further treatment and residence in a home other than his mother’s, in a therapeutic setting.While the Court may not direct that a therapeutic residence be provided, this decision has been reached with some confidence that such aresidential treatment option may be made available. Circumstances of the offences [10] The 7 year old complainant was 2 years earlier a victim of sexual touching by C.N.A.C. On this occasion he came home with$10.00 and his mother questioned him about it.

He eventually told her that the money came from C.N.A.C. and that he had to touch himto get the money. The mother suspended questioning and contacted the police. Two days later the child gave a videotaped statement inwhich he said that he was aware that he was not to go to C.’s house because he does bad things. On this occasion C. asked him to go tothe church parking lot where he was given $10.00. C. then did a “bad thing”; he put his penis in the victim’s mouth.

The second offencestems from a breach of probation requiring that C.N.A.C. have no contact with the victim, except in approved circumstances. [11] The Court did not receive a victim impact statement. The author of the pre-sentence report addressed the Impact on the Victimand Community at page 4. The Court was informed that the young victim had not received any counselling as of the date of the report;this is regrettable. [12] In any event the pre-sentence report goes beyond what is appropriate in the context of describing impact on the victim whenit reiterates the mother’s view regarding sentence.

This has been the subject of repeated comment in decisions of this Court. See R. v.Bremner (2000), 2000 BCCA 345 , 146 C.C.C. (3d) 59 (BCCA), endorsed in R. v. Revet, 2010 SKCA 71 , [2010] S.J.No. 303 (SKCA) and my discussion of this issue in R. v. Unger, 2007 SKPC 4 , 2007 SKPC 04, at paragraphs 23 to 35. Themother and grandmother attended the sentencing conference but chose not to participate. In that setting discussion of the appropriatesentence would have been invited. Background [13] C.N.A.C. was 16 years of age at the time of the offence.

This was the second time that he offended against this victim and indoing so he breached a “no contact” clause in his probation order. The probation order, dated September 13, 2011, provided: You shall have no contact directly or indirectly with B.M. and K.M. unless approved by your child therapist and under thedirect supervision of an approved adult who is aware of your offending pattern and only with the consent of the parent of B. and K.M. . . .

You are not to initiate, establish or maintain contact with any male or female child under the age of 12 years, and notattempt to do so, except in the company of an adult who is aware of your offending behaviour, and then only with the consent ofthe parents of the child and with circumstances approved by your youth worker or therapist. [14] C.N.A.C.’s two prior findings of guilt stem from the same time frame: April to December 2010 for sexual touching andinvitation to sexual touching, contrary to sections 151 and 152 of the Criminal Code.

These offences involved two complainants, one ofwhom is the victim in the current incident. At the time of the 2010 offences, C.N.A.C. was 13 years of age. [15] The following reports were available to the Court: Pre-sentence Report of D. Zdunick, dated August 24, 2011 Report of Dr. E. Legault, dated August 30, 2011 Judicial Interim Release Report of D. Zdunick, dated August 8, 2013 Report of Ms. C. Pringle-Nelson, dated September 5, 2013 Report of Dr. Declan Quinn, psychiatrist, dated September 11, 2013 Pre-sentence Report of D. Zdunick, dated October 17, 2013

[ 16 ] In addition to the current reports, it was important to consider information contained in the reports pertaining to the offences for which findings of guilt were recorded in 2011. Ms. Zdunick, the author of the current pre-sentence report, wrote from the perspective of someone who has been working with C. and his mother and treatment team since 2011 and some of the information in the 2011 pre- sentence report is repeated in the 2013 pre-sentence report. Most importantly the response of C.N.A.C. and his mother to the treatment and programs put in place at that time are important to this decision.

Sentencing conference [ 17 ] As a preliminary matter it was noted that the author of the pre-sentence report included a recommendation as to sentence. The pre-sentence report was prepared in contemplation of a conference; indeed it was specifically noted on the request. The YCJA provides: Conferences may be convened -- s. 19(1) 19.

(1) A youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker may convene or cause to be convened a conference for the purpose of making a decision required to be made under this Act. Recommendation of conference -- s. 41 41. When a youth justice court finds a young person guilty of an offence, the court may convene or cause to be convened a conference under

section 19 for recommendations to the court on an appropriate youth sentence. It is in keeping with the spirit of the conference that the parties refrain from making recommendations regarding sentence until that time is reached during the course of conference deliberations. [ 18 ] Input from the sentencing conference will be discussed under the general headings below.

It is important however to outline the crucial information concerning placement with the Ministry of Social Services as this information served to focus discussions in light of placement considerations. [ 19 ] Two representatives from Social Services, Child Protection, attended. The Ministry requested a parenting capacity assessment that was not expected until after the conference.

At the outset, the supervisor for Child Protection expressed the view that they could not take a position regarding placement of C.N.A.C. as he was not in the mother’s home and it was doubtful that the Ministry would supervise him if he returned to his mother’s care. Further, given that C.N.A.C. is in the 16/17 year old program, Child Protection would not offer supervision for him. Their key focus insofar as the parenting capacity assessment was C.N.A.C.’s younger sister, J.C. It was in part due to the anticipated report that the Court reserved its decision concerning sentence.

The report was filed with the Court on December 3, 2013. [ 20 ] Two representatives from the 16/17 year old program also attended and elaborated insofar as their concerns which were succinctly stated as follows: Is C.N.A.C. safe? Will he enter into a s. 10 voluntary agreement? What are the criteria for eligibility? What supports are needed? [ 21 ] A Social Services intake screening with C.N.A.C. was conducted in August of this year. Questions focused upon whether his mother knew where he was when he offended and he reported that she did not.

They were mindful that the 24 month probation order imposed in September 2011 included a condition that he reside at a residence approved by his youth worker. C.N.A.C. said that there were rules in the home and that he understood the expectations. It would seem that as a result of this screening and C.N.A.C.’s input, there were no safety concerns insofar as his residing with his mother. However the Ministry arranged for a parenting capacity assessment by Dr. T. Greenough concerning the mother, L.C. insofar as her capacity to care for C.N.A.C.’s younger sister who remained in the home.

During the conference the implications of a negative assessment were explored on a hypothetical basis. The conference was informed that as the 16/17 year old program is voluntary they would then discuss with C.N.A.C. whether he would like to voluntarily follow a case plan with the program. If he was willing then they could look at supporting him in the mother’s home or they could look at an alternative residential placement.

Concerns regarding parental supervision of C.N.A.C. and attitude toward treatment [ 22 ] There have been ongoing concerns regarding C.’s mother’s ability to properly supervise him in the community. The 2011 reports of Dr. Legault and Ms. Zdunick addressed the issue of parental supervision. Dr. Legault’s August 30, 2011 report was dated and

filed with the Court prior to the sentencing in 2011 but after preparation of the Pre-sentence report. [ 23 ] Under “Summary of Background Information” Dr. Legault discussed Ms. C.’s ability to manage C.N.A.C. and compared his behaviour in school to that in the home: . . . C.’s school behaviour is described as positive and appropriate. C. is reportedly able to follow rules when away from home and his sister. He apparently responds well to the structure and routine of school (although he frequently fails to attend). . . .

In contrast to C.’s quiet school behaviour, when in the home (or anytime he is in the company of his sister) both C. and his sister’s behaviour is described as completely out of their mother’s control (or that of any other adult). C. has been reported to steal from his mother and has been observed to hit, throw things, damage property, threaten, and scream at both his mother and sister. Ms. C.’s response to this type of behaviour has been described as ineffectual by observers. It has also been noted that C.’s behaviour is so extreme that physical intervention by Ms. C. might be physically risky. . . . Ms.

M. (parent aide) indicated that Ms. C. and she have worked together for two and a half years on assisting Ms. C. develop positive parenting strategies aimed at interrupting the children’s negative behaviours, increasing consistency, establishing safe and appropriate interpersonal boundaries, and linking behaviour to consequences. . . Despite the gains, Ms. C. has struggled with implementing positive parenting skills and she continues to rely on ineffective parenting strategies (e.g. yelling). . . . [ 24 ] Dr. Legault was of the view, expressed in

part in her 2011 report and at the conference, concerning the proximity of Ms. C.’s home to that of the victim, that Ms. C.: i. is unable to adequately supervise her son, ii. is not supportive of the treatment regime; she detracts from the efforts of the therapists working with her son, and iii. C.N.A.C. must not be allowed to return to the neighbourhood where the complainant resides.

This is a second offence upon the same complainant and while extra-familial, there appears to be an element of familiarity to the pattern of offending which may be attributed to the proximity of the offender and the neighbourhood itself. [ 25 ] In her 2011 report, Dr. Legault recommended that C.N.A.C. not live in the parental home: 1) Ms. C. . . . has struggled in managing the challenges with which he has presented her. . . .

Until C. and his mother have demonstrated that C. can reliably display only appropriate self expression it is recommended that he reside in another environment in order to assist him to acquire skills and to support Ms. C. in learning ways to hold him accountable for his negative actions. This court record discloses that this report was released by the Court to the youth worker, D. Zdunick and to the youth’s mother. [ 26 ] The pre-sentence report of August 24, 2011, referenced consultations with the Ministry of Social Services.

The report outlines some of the history with the Ministry which is relevant to the concern about Ms. C.’s ability to adequately supervise C.N.A.C.: . . . A.D., MSS, Family Services Worker informed that he became involved with L. in 2009 . . . It then became apparent that she had a severe mold and ice problem in her home, as well as symptoms of excessive hoarding behaviour, which was presented as a health hazard to herself and her children. A.D. informed that once the MSS was involved in L.’s life, they also found that there were concerns with L.’s parenting. Mr. D. informed that . . .

Even though she receives guidance from her parent aide in maintaining boundaries within the home and in intervening when C. becomes aggressive towards his sister and her, L. continues to struggle with this. L. is also accessing the services of a personal and family counsellor at Catholic Family Services. Mr. D. also brought in the services of the Community Living Division to assist with C.’s cognitive disabilities. . .

C. receives services from a male mentor through Family Services Saskatoon, and the Saskatoon School Board, along with his teachers and school social workers, all of which have supported the family on a regular and ongoing basis. Mr. D. reported that L. has made significant progress in her own life, as well as in her parenting skills over the past two years.

He informed that she has read every parenting book and has attended every session of parenting groups made available to her; although, she still has difficulty with implementing the knowledge that she has gained. [ 27 ] The 2011 pre-sentence report made no recommendation concerning parental supervision or residence; it must be remembered that it was prepared prior to receipt of Dr. Legault’s report which recommended that C. not reside in the parental home. The author of the

pre-sentence report seemed to be of the view that a probation order was only necessary to ensure eligibility for the Adolescent Sexual Offender Treatment Program: . . . It is the writer’s opinion that C. and his family already have an abundance of supports and monitoring agencies whom are actively involved in his daily life, so a community based probation order for the purpose of supervision is essentially not needed at this time.

Unfortunately, C. will not be eligible to attend or participate in the community based Adolescent Sexual Offender Treatment program that is offered at Child and Youth Services unless he is ordered to participate in the program via a community based order. Given this the youth courts should consider a community based order, but his cognitive/neurological difficulties should be taken into consideration at the time of sentencing to ensure that such conditions do not place him in breach situations due to his level of functioning.

The Court adopted the youth worker’s proposed conditions and added a number of conditions including a residence condition, giving the youth worker the authority to approve the residence. [ 28 ] Dr. Legault’s August 30, 2011 report highlighted a concern regarding Ms. C.’s failure to hold her son accountable for his misbehaviour and his risk to re-offend sexually: Ms. C. appears to attribute C.’s aggressive behaviour in the home environment entirely to his experience of being bullied.

She believes that his sexual misbehaviour is the result of his own previous sexual victimization by neighbourhood children and his exposure to the sexualized behaviour of C.’s younger sister and her friends. Ms. C. believes that holding C. responsible for sexually intrusive behaviours is difficult because of the perceived unfairness of being prosecuted for his actions when those who victimized him have not been dealt with in the courts. Dr. Legault assessed his risk to re-offend sexually to be in the high range. [ 29 ] The September 5, 2011 psychological assessment of Ms. C.

Pringle-Nelson repeated the concern about parental supervision noting on page 2 from file information that: . . . C., in addition to J., engage in negative, unrestrained behaviour in the home, despite his mother having accessed assistance from a parent aide, the Ministry of Social Services, Parents Forever (support for parents with disabilities) and mental health professionals. Further on page 2 of that report, inappropriate use of free-time, was noted: . . . C. explicitly stated he enjoys video games. He described a number of violent, antisocial and extremely negative games that he plays on a regular basis.

He became more animated when discussing, using physical gestures (e.g., holding a gun) and describing what is required to become accomplished in games such as Grand Theft Auto. Other sources indicate video games and movies consume much of C.’s leisure time. [ 30 ] Ms. Zdunick addressed family circumstances and parenting in her October 17, 2013 pre-sentence report. She explained the challenges experienced by C.’s mother in preventing contact with younger children without adult supervision, required by the September 2011 probation order: . . .

She understands that he should not have contact with children, but reports that they reside in a duplex and that there are children residing in the house next door, and also there are many children on the block so it is difficult to avoid all children. L. has historically struggled to maintain adequate supervision of C. Over the past two years while C. was on probation, there have been numerous occasions in which professional supports have attempted to gain her compliance in monitoring C.’s access to children in the community but those attempts have failed. . . . [ 31 ] Ms.

Zdunick’s 2013 pre-sentence report expressed the view that C.’s mother’s attitude was not supportive of the Adolescent Sex Offender Treatment Program: . . . Since being sentenced, L. has continued to minimize C.’s offence, and has allocated blame to the victims and their families. Therefore, reducing any positive affect that treatment has on C. She has been challenged on encouraging (indirectly) negative responses from C. by minimizing his sexual offences. Given these concerns, it is questionable if L. would be able to ensure the level of supervision C. requires to keep himself and the community safe. . . .

She did not address the decision-making of the provincial director regarding approval of the residence, a term of the probation order. [ 32 ] Ms. Zdunick’s 2013 report did reference recent discussions involving the Ministry of Justice, Department of Community Living Division, and the Ministry of Social Services, concerning alternative residential options. They concluded that the only residential option for someone with C.’s profile is Ranch Ehrlo in Regina. The Ministry of Social Services, responding to a s. 35 request by the Court for assessment concerning such a placement, indicated that C. did not qualify.

In an August 21, 2013 letter to the Court, the Ministry of Social Services wrote: At your request, information gathering and screening was completed on August 13, 2013, with C. C. at Kilburn Hall. C. did not identify safety concerns in the family homes, and his mother appears to have the ability to protect the youth in the home. Mandate for the16/27 program does not extend to the safety risk that a youth poses in the community, and as such, is a Justice matter to ensure public safety. A file review of the mother’s historical involvement with the Ministry of Social Services is underway. . .

Family Services has also made a referral for a parenting assessment to be completed on the mother.

Should the file review and/or parenting assessment speak to the contrary of the mother’s ability to protect the youth in the home; this information would be provided to the Court. [ 33 ] On the occasion of the sentencing conference, the Ministry of Social Services had not received the parenting assessment but one of the supervisors in attendance expressed the opinion that C. should not return to the parental home and the Ministry agreed that should the Court impose a condition as part of his sentence that he not reside in the parental home that they would find alternate accommodation.

As they were still awaiting receipt of the parental capacity assessment, sentencing was adjourned and C.N.A.C. was remanded into custody to December 4, 2013. At that time, pending full review of the assessment of this date and preparation of this decision, C.N.A.C. was released on an undertaking, as stated, on the understanding that he not reside in his mother’s home. Parenting capacity assessment [ 34 ] On December 3, 2013, the Court received the parenting capacity assessment of Dr. T. Greenough. It concerned C.N.A.C.’s younger sister, J.C.

It was received with a covering letter, dated December 3, 2013 asking that the report be sealed and that access be limited given the “highly personal nature” of the information. Out of respect for this wish, I have referred only to the Recommendations found at the foot of the 30 page document: 1. It is the writer’s opinion that L. has inadequate ability to care for herself. Her early childhood abusive experiences have likely led her to cope ineffectively with stress. She displays evidence of a Conversion Disorder in which stress and anxiety are manifested in a variety of physical ailments.

These ailments seriously undermine her capacity to care for herself let alone her children. The writer is concerned that if J. remains in L.’s care, her mother will not be able to provide minimally adequate structure and supervision. Furthermore, J. would be at high risk to be a victim of abuse which would require the Ministry of Social Services’ involvement. 2. It is the writer’s opinion that L. is not capable to provide adequate care and supervision for her son who evidently has a number of special needs. Furthermore, if C. was returned to L.’s care, the writer would be concerned for J.’s welfare. 3.

It is the writer’s opinion that L. needs to be involved in treatment that can address her psychological problems. L. needs assistance to learn to recognize and manage her anxiety more appropriately before she can care for herself and her children more effectively. Failure to address these issues will result in no change in other areas of her life, i.e. weight loss, home maintenance, adequate child supervision. 4. It is recommended that J. be placed in a structured home environment in which she can be provided the opportunity to maximize her pro-social skills. 5.

It is recommended that J. have non-overnight access visits with her mother. C.N.A.C. was a victim of sexual assault, violence and bullying

[ 35 ] Dr. Legault noted that C. was himself a victim of sexual abuse. Ms. Zdunick in the August 24, 2011 pre-sentence report wrote at page 11: C. was sexually assaulted by two older youth who live on the same block approximately one year ago. This was reported and investigated by police, but no charges were ever laid. C. does not want to talk about it to anyone as his abusers continue to tell him that if he tells anyone, they will come after his sister. He did however provide a written description of events when he was asked to write about the events of the offences he committed.

What was done to me: C. and E. made me suck on their dicks and lay on them and did the same things to me and my mom went to the police about it and I talked to the same cop and at the end of talking to the cop he said it’s just boys being curious so C. and E. got away with it and the cop did not listen to me and I felt mad and sad because C. and E. got away with it so I felt failed by the police department and I felt mad and sad because of what C. and E. did.

From what the Court has been able to glean of this incident, it would seem that the perpetrators were under age 12 at the time of the offending behaviour. [ 36 ] The August 24, 2011 pre-sentence report writes about C.N.A.C. suffering physical violence: Victim of physical violence C. is a victim of ongoing physical violence by other youth who bully and threaten him on a daily basis. L. described that he has been beat up on numerous occasions and pushed around at school. [ 37 ] The August 30, 2011 psychological report of Dr.

Legault detailed the information that she received concerning bullying in the time leading up to that report. The 2011 pre-sentence report wrote about the bullying in the context of C.N.A.C.’s poor social skills (see paragraph 42 below). Cognitive Ability and Social Skills [ 38 ] Dr. D. Quinn assessed C.N.A.C. in September of 2013. He reviewed reports available from the Child and Youth Mental Health and Addiction Services forensic team. He was aware of the previous and current offences.

He had this to say regarding cognitive and mental health functioning: In the interview setting, it is very clear that he has limited cognitive and intellectual skills. He scores in the borderline range. . . . C. presents primarily with a developmental delay in terms of his intellectual skills. There is no specific disruptive behaviour disorder present such as ADHS or an oppositional defiant disorder evident at this time. He has a past psychiatric history having been the victim of sexual abuse. His self-report identifies a lot of anxiety. There is no psychosis. He is aware of the seriousness of his charges.

I believe he has regret for what has happened. I believe as well he is remorseful. [ 39 ] Dr. Quinn made these recommendations: C. needs ongoing counselling to help him deal with his past victimization, his role as a perpetrator and to deal with aspect of his sexual orientation. He should not be left in situations with young children without supervision. He should be placed in the school setting to allow him to continue his academic goals and develop functional skills. I do not believe that a custodial sentence would be helpful for him. [ 40 ] Dr.

Legault was not asked to conduct an assessment of C.N.A.C.’s cognitive ability. The August 30, 2011 psychological assessment was prepared at the request of the Court. It provides under the heading,

Summary of Background Information that previous cognitive testing:

. . . indicates that C.’s intellectual abilities fall in the Extremely Low range (though close to the next higher category – the Borderline range). This indicates that C.’s cognitive abilities are mildly delayed. The assessment indicated that his ability to think and problem solve in verbal ways were equivalent to his ability to think and problem-solve in non-verbal ways, meaning that C. can be expected to need extra time and repetition to learn and understand. The report that Dr.

Legault referred to was not provided to the Court. [ 41 ] The pre-sentence report of August 24, 2011 provides at page 11 that C.N.A.C. has an IQ of 69: Learning Disability C. is assessed at having an IQ of 69 on a Child and Youth Services Mental Health and Addictions assessment, dated April 13, 2010. Social Worker, A.D. informed that C. is also diagnosed with MMR (mild mental retardation).

More detailed information was provided at page 13 of the report. [ 42 ] The pre-sentence report of August 24, 2011 provided further insight into the challenges experienced by C.N.A.C. insofar as age appropriate companions and social skills: Companions . . . C. does not have any age appropriate friends or acquaintances. . . According to his Family Service Worker, A.D., he described that L. tended to keep her children in the house as young children, the majority of the time, and kept them occupied with video games and movies. Mr. D. reported that this may have been associated with her hoarding behaviours.

C. has recently been associating with a few other kids who reside on his block, these children are much younger than he is, yet may be seen as developmentally at the same maturity level. He is not accepted by peers his own age in the community or at school. . . Poor Social Skills/Isolation C. has poor social skills. This may be attributed to his lack of social contact throughout his childhood years due to his mother’s hoarding behaviours and cognitive and/or neurological difficulties. C.’s social deficits serve to isolate him even more from the community in which he lives, and with other youth his own age.

Elisabeth Alexander wrote in her June 2010 psychological assessment that his social isolation makes C. even more vulnerable to bullying by others. A consequence of the long term bullying may be the result of some behavioural patterns that perpetuate bullying (e.g., being submissive, believing that he is worthless and should be abused.) [ 43 ] The psychological assessment of Ms. Pringle-Nelson, dated September 5, 2013, provides a cognitive assessment. He was found to be within the Borderline range of functioning. His overall thinking and reasoning abilities exceed those of approximately 3% of children his age.

His verbal reasoning abilities measured in the Borderline range and are above those of only 6% of his peers. His nonverbal reasoning abilities are in the Extremely Low range and above those of only 2% of his peers. His ability to sustain attention, concentrate, and exert mental control is in the Borderline range, performing better than approximately 4% of his age-mates. His processing of simple or routine visual material was in the Low Average range, performing better than approximately 13% of his peers.

The author summarised at page 6: Typically, individuals who perform in the borderline range, with a similar profile to C., have some capacity to reason with words, some ability to remember information, and can typically make some decisions based on previous experience. [ 44 ] Ms. Pringle-Nelson recommended that: Continued efforts be made to ensure appropriate structure and support within C.’s home context in an effort to assist C. to generalize and transfer treatment concepts in a practical and lived manner. [ 45 ] In her October 2013 report, Ms.

Zdunick remarked upon a concern about personal hygiene: C. also struggles with daily personal hygiene issues. Ms. W. informed that he would often come to school smelling of urine or feces. . . he was asked to shower at school and bring a clean change of clothing to dress in after each day.

His mother reported that he is in charge of his own laundry. He is on medication for Enuresis (bedwetting). Sex offender treatment and response [ 46 ] According to Ms. Pringle-Nelson’s report of September 5, 2013, C. has been in both individual and group sex offender treatment for approximately 2 years, since July 2011. The group is geared for youth with cognitive/intellectual limitations. Much repetition and simple concrete language is used.

Group notes indicate that C. demonstrates learning by answering questions correctly, remembering previously taught concepts, working on tasks and presenting to group members. C.’s answers to questions tend to be quite simple and concrete, although this would be expected of an individual with cognitive abilities like C.’s. [ 47 ] Ms. Zdunick discussed C.N.A.C.’s treatment regime in her 2013 pre-sentence report. For the first couple of months Dr. Legault worked with his mother due to concerns about ability to effectively supervise C.

They endeavoured to develop her parenting skills around supervision but encountered problems early in 2012. . . . After it became apparent that L. was unwilling to follow through, C. began individual sessions and since March 2012 he has also been active in attending group therapy. Due to C.’s low cognitive ability, he struggled to understand fully what was being verbalized to him, thus he is connected with a Service Provider, Pam Wieler, who works under the guidance of Dr.

Legault to assist C. in understanding the therapeutic curriculum/relapse prevention and assist C. in building skills to prevent relapse of his sexual offending behaviour in the community. C. has made minimal progress since beginning treatment in September 2011. [ 48 ] Ms. Zdunick referred to an email to her from Dr. Legault dated August 6, 2013 in which she described his apparent progress in the group and individual sessions, although he had not been very forthcoming with information about his thoughts and feelings, including sexual orientation and interests.

He apparently learned treatment concepts very well and demonstrated an understanding and appropriate behaviour in public. The problem was that he apparently didn’t follow guidelines about avoiding contact and interactions with youngsters when not being supervised. Ms. Zdunick illustrated the concern: . . . For instance, he told both the Service Provider and myself that he had a right to walk on the street where the victims resided. After numerous discussions, he eventually agreed to avoid that street when given a direct order and a threat of a breach from the Youth Worker.

The probation order which binds C.N.A.C. does not require he refrain from walking on the street where the complainants live. There was no radius clause. The “no contact” provision provides: Have no contact directly or indirectly with B.M. and K.M. unless approved by your child therapist and under the direct supervision of an approved adult who is aware of your offending pattern and only with the consent of the parent of B. and K.M. [ 49 ] According to Ms. Zdunick, C.N.A.C. maintained almost perfect attendance in the weekly adolescent sexual offender group and individual treatment sessions. Ms.

Zdunick reported, after conferring with Dr. Legault, that despite participation in treatment and learning to identify high risk situations: what situations, behaviours, and thinking to avoid; improving social skills, etc., expressing remorse, he re-offended. That makes him a high risk. [ 50 ] Ms. Zdunick outlined the progress that C.N.A.C. achieved in the school setting until May and June of 2013, the offences having occurred in May 2013. One of his teachers spoke quite positively about C.N.A.C.: “. . .

C. is able to receive direction from authority such as teachers and coaches and was a good role model for another youth by supporting and encouraging other youth’s participation.” [ 51 ] C.N.A.C. was also reported to have been involved in some interesting and rewarding group leisure and recreation activities, including hockey and drama, where he did very well. [ 52 ] Ms. Zdunick reported that “C. has good relationships with authority figures and respects his teachers, mentor, counsellors and all the helping agencies and professionals who are involved in his life.” [ 53 ] In her 2013 report, Ms.

Zdunick recommended a greater level of supervision in order to ensure the safety of the public. It would seem that her recommendation for open custody was affected at least in part by the initial approach taken by the Ministry of Social Services which was that it would not offer placement and supervision outside the parental home. In any event, she recommended a

term of open custody that would be long enough to ensure that C.N.A.C. is engaged in a community safety and relapse prevention plan, noting that adolescent sexual offender treatment usually takes 24 months to complete. Importance of supported structure [ 54 ] During the sentencing conference, Dr. Legault observed that C.N.A.C. does very well with structure. Ms. Zdunick elaborated upon the treatment and work with a service provider. This included exercises or assignments in the community that were designed to reinforce the treatment plan.

While on remand he has responded very well to the structure and routine and there have been no problems. Some of his treatment providers have continued to see him on remand. [ 55 ] A teacher from an alternative education program at E.D. Feehan attended the conference. She believes that C.N.A.C. has the ability to live independently in the community. She felt that he would be able to achieve a modified grade 12 education under the umbrella of alternative education. He will receive a diploma but will not be eligible for secondary education. In grade 11 now, he is able to remain in his current program until age 22.

In school he is a model student. When he began with the program he was reserved. She has seen him progress in leaps and bounds. She has maintained the connection with his school program while he’s been on remand. [ 56 ] C.N.A.C.’s community services worker has known him since he was 2 years old. She described him as he appeared as a small child. He was very compliant and quiet, never talked, was afraid of new people and activities, was very vulnerable and easily lead. She observed that his mother was very overprotective and that she felt he was safer associating with younger children.

C.N.A.C. had a difficult time knowing age appropriate behaviours and fitting in with peers his own age. He didn’t understand why he wasn’t accepted and often blamed his mother and sister for his lack of friendships. She said that his friends are all paid or volunteer, that he does not enjoy real friendships. The Mormon Church across the street from his home has offered support to him and his family. His mother has lots of friends and this has been good for C. Ms. H. runs a parent group which meets weekly. C. has made friends there and has taken on the role of a helper with the daycare workers.

His contact with little kids there has been under adult supervision. Ms. Zdunick expressed reservations as to his role in the daycare setting; stating that he should have as little contact as possible with young children. Dr. Legault agreed with this remark as C.N.A.C. has demonstrated that he is attracted to younger boys.

It is not clear to the Court that this contact was in keeping with the probation order of September 2011 which only permits informed supervised contact with children under 12 years of age and with approval by the therapist or youth worker as to the overall circumstances. [ 57 ] His community service worker spoke to C.N.A.C.’s needs: an understanding of healthy family relationships and experience with peer relationships, particularly girls. She expressed concern for him being placed in an environment where he may be exposed to negative behaviours given his tendency to be attracted to the negative.

She described his learning style which requires one-on-one direction, routine, repetition and a high degree of structure. She reinforced that he is really close to his mother who is his only real community connection; she predicted that severing the connection would be traumatic. [ 58 ] C.N.A.C.’s community support worker from Family Service Saskatoon attended. He has known C.N.A.C. for 4 years and worked with him for 2 years. He described him as a follower, especially when the group chooses to do something negative. He observed that negative groups are more likely to let someone like C.N.A.C. into their group.

He has been part of a performing arts for youth group, which is an alternative intervention weekly youth group designed, among other things, to teach social skills. C.N.A.C. was a very successful member from October 2012 to April 2013. In that group he established a really close friendship with a same age peer. Mother’s Response [ 59 ] L.C. spoke about C.N.A.C.’s mistreatment by others in the community, stating that, “pretty well his whole life he has been beaten and abused by the people in the neighbourhood and in school. . .” She also referred to problems with C.N.A.C.’s biological father and her older son.

She agreed that she was overprotective in her attempts to limit her children’s exposure to such risks. L.C. expressed the view that when bad things happen to her children, “no one seems to care”.

She said that when C.N.A.C. was abused, “he had a police officer tell him, it was no big deal, it doesn’t matter.” These remarks were received with some skepticism given all of the information available. [ 60 ] With respect to his therapy for sexual offending; L.C. said that his needs as a result of the abuse that he endured, must be addressed first: . . .if you don’t fix what has been broken, . . . and no one has acknowledged or helped him work through what was done to him. . .”.

She acknowledged that what her son has done is very wrong and said that she takes him to task for that. She remarked upon criticisms that she has blamed the victim: . . . you know I’ve been accused of blaming the victim, well I’ve been a survivor since I was a year and a half, so if anyone knows about being a victim, I do. Ms. C. said that she has tried to explain to her son that you learn from what’s been done to you and become a better person.

She referred to abuse of C.N.A.C. in the neighbourhood since “this whole thing has happened” and complained that despite the numerous resources provided, no one has done anything. [ 61 ] L.C. described her approach when her son returns from a “session” with Dr. Legault or other therapist and tells her how he is feeling. She picks up the phone to speak to his treatment team to address their failure to respond to his needs. [ 62 ] L.C. became more defensive when describing her son making friends.

This became significant with respect to the question of supervision of C.N.A.C.’s contact with children: “I went to a parenting group. I met the parent. I became friends with the parent. The parent was supposed to come to my home with the kid but it was always just the kids coming.” Seeking clarification, I asked her how she handled it when kids came over without their parents.

She replied that her “home wound up being the home where all the kids were in my home all the time.” After further questioning, she said that this activity pre-dated the order restricting his contact with children under age 12. [ 63 ] L.C. and C.N.A.C. advised that he was sexually assaulted between the ages of 6 to 9 years but did not disclose the assaults until 2010, when he was 13 or 14 years of age. C. stated that one of the perpetrators was older than him and one was younger; they were brothers and lived on the block.

Given what C.N.A.C. had to say about the age of his perpetrators, it would seem that, one, possibly both were not prosecuted because they did not meet the age requirements under the YCJA , age 12. Any action taken by the Ministry of Family Services may not have been shared with L.C.

Conference resolution discussions [ 64 ] When the conference turned to discuss its recommendations, the supervisor of Child Protection with the Ministry of Social Services did not support C.N.A.C. returning to his mother’s home, stating that he would not have the structure and supervision needed and there are questions about his younger sister within the home. She felt that placement in the mother’s home was not in the best interests of his needs and development; that learning the techniques that he requires would not happen in the parental home.

She shared that the Ministry is struggling with his sister’s needs and the mother’s ability. One of the concerns is the behaviour between C.N.A.C. and his sister J.C. Even so, while C.N.A.C. has been out of the home, her behaviour has become very concerning and the mother has had no control over her. It was shared that these concerns have been of longstanding and the pattern has been to try different things in the home. Ms.

C. was unable to say whether there was consideration of an alternative residence for C.N.A.C. in the past as her involvement only began about 4 months prior to the conference. [ 65 ] The representatives from the Ministry of Social Services were asked if they were aware of the report of Dr. Legault that was prepared in August 2011 and her recommendation that C.N.A.C. not reside in the parental home. It would seem that the Ministry may not have received Dr. Legault’s report. [ 66 ] Dr.

Legault expressed concern about structure and routine and the kinds of things that C. spends his time doing in the home, including violent and sexualized video games. She would like to see him in a structured environment where there are rules and expectations of behaviour which are clear. She would like to see consistent reinforcement of pro-social values with respect to actions and words. She believes he needs to continue treatment. In her view, the fact that he re-offended against the same victim says something about sexual urges that are not being controlled.

It is not desirable that he return to his neighbourhood where there are a lot of children. The pattern needs to be broken. He should not reside close to the victims and should be kept away from the associations which exist in that neighbourhood. She thinks that he has an emotional and sexual connection with the victim and possibly young boys. When asked whether she would recommend a non-custodial facility over a custodial one, she suggested that a facility which could last longer would be better. She recommended a period out of the home where there would be structure.

She agreed that his vulnerability to negative peers was a concern. [ 67 ] Ms. Zdunick, the youth worker who has worked with C.N.A.C. since his first offences, stressed the importance of the safety of the community and recommended an open custody sentence. She believed that he would benefit from a longer duration and stated that he would go to the Yarrow Youth Farm where his treatment, education and familial contact needs could be maintained. She said that all of the services could continue.

She reminded those present that C.N.A.C. has received extensive community services over many years, all with a view to keeping him in the home. She stressed the importance of an open custody sentence which is of sufficient duration that it

becomes part of his routine. Ms. Zdunick also expressed confidence that the 16/17 year old program would place C.N.A.C. in keeping with the Court’s conditions or those of the youth worker. She expressed the view that work with C.N.A.C. may be lifelong given his cognitive disabilities. [ 68 ] A representative from Community Living was present to advise the conference as to the services that may be available once C.N.A.C. reaches age l8. While they do not offer supervision in their homes, they do provide supported living. [ 69 ] Ms. Watkins would like to see C.N.A.C. get his grade 12 diploma.

She shared that he does have an age appropriate friend at the E.D. Feehan alternative program. She stressed that to ensure regular school attendance, C. needs support. The program that C.N.A.C. has been engaged in goes beyond grade 12 and includes work placement and summer programs to age 22. [ 70 ] C.N.A.C.’s mother was asked to address things that she believes her son needs help with.

She spoke again about the importance of addressing the mistreatment of her son: I honestly, and this is something I’ve stressed throughout this whole situation, that he needs to have help to work on the things that have been done to him and all the people that have let him down. . . you know, people that have made all these promises but have never followed through, . . . There’s never been someone that could just sit down and let him talk about what’s happened to him. Like he can open up and talk to me but I’m not a professional so I don’t have the tools to be able to solve those problems.

So I go to people to get those tools and they don’t follow through. . . So then I’m still trying to help him with those things. As well, L.C. spoke of her son’s contributions in the neighbourhood and said that people love him and miss him.

These remarks did not have a ring of reality, the resources because the Court was made aware of the numerous resources provided to her and her children, and the neighbourhood affinity for her son, because it contradicted her remarks about his mistreatment in the neighbourhood and overlooked the presence of the victims in the neighbourhood. [ 71 ] L.C. was critical of the system; suggesting that she has tried to be good model for her children and that she has repeatedly reached out for help for her children only to be met with a lack of follow through or refusals to assist. This too did not have a ring of reality.

At one point she began to list things that she has learned from her experiences and began by saying: “1) Trust no one.” She spoke vigorously in her son’s defence, stressing that his self-worth has suffered because people have not listened to him and have made him feel as if he didn’t matter. She suggested that his refusal to discuss his personal feelings openly with the therapists was because they tell him that they don’t believe him.

A great deal of what she shared seemed to be connected with family tragedies which were not explored in the sentencing conference and at times it was difficult to appreciate their relevance. L.C.’s remarks detracted from the proper focus of the conference and her remarks and their influence upon C.N.A.C. was evident in his subsequent remarks. [ 72 ] When C.N.A.C. spoke again, he picked up on his mother’s remarks about the failure of the system to help them and he tried to justify his failure to talk about himself in therapy, saying that the therapists called him a liar. He said this of his work with Dr.

Legault: She has accused me of lying and that, actually more than once and that’s why I’m not really open anymore here. . . . You make a mistake and I don’t really trust people and that because you know you guys supposed to be professionals but yet again, where were the cops and that, where were the professionals when I was abused and that and assaulted many times. . . .

They didn’t do their job correctly . . . [ 73 ] C.N.A.C. then expressed some insight and regret for his behaviour. . . . and there’s a reason why I kind of prefer to hang out with kids and that. . . because I never really had a kid younger than me hurt me. . . But with kids younger than me, I guess I hurt them. . . . I only really hurt two, which I’m really sorry about. . . I hurt one of them twice. . . . Actually going through this and that brought back memories from when I was abused. . .

Discussion of the law and its application [ 74 ] The Youth Criminal Justice Act (YCJA) establishes a separate system to address wrongdoing by young persons who have a reduced level of culpability by virtue of their age. In R. v. D.B ., 2008 SCC 25 , the Supreme Court of Canada reviewed the legislation and confirmed the presumption of diminished moral blameworthiness or culpability. In R. v. D.B. , supra, Justice Abella discussed the basis for this presumption and its application as a fundamental principle of a fair legal system.

In so doing she referred to several authors who are well known in the field of criminal justice in Canada, that have discussed the approach to be taken in a youth justice system, at paragraphs 62 to 64: [62] It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Allan Manson notes that “[t]he general principle that applies to youthful offenders . . . [is] that a lack of experience with the world

warrants leniency and optimism for the future” ( The Law of Sentencing (2001), at pp. 103-4). And Professor Bala describes the YCJA as premised on a recognition that to be a youth is to be in a state of “diminished responsibility” in a moral and intellectual sense. Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts.

Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. . . .

This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults. ( Youth Criminal Justice Law , at pp. 3-4 (footnotes omitted)) [63] The following observation by Justice Gilles Renaud in Speaking to Sentence: A Practical Guide (2004), at p. 10, is also apt: Stated simply, offenders who act out of immaturity, impulsiveness, or other ill-considered motivation are not to be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as more mature, reflective, or considered individuals.

The less elevated the degree of moral blameworthiness, the greater the reach of leniency. By way of limited example, the relative youth of an offender will be emphasized in those cases in which an individualized disposition is selected . . . . [64] As Professor Bala explains, “adolescents generally lack the judgment and knowledge to participate effectively in the court process and may be more vulnerable than adults” ( Youth Criminal Justice Law , at p. 5).

There is, moreover, evidence suggesting that as a result of this reduced judgment and maturity, young persons respond differently to punishment than adults, and that harsher penalties do not, by themselves, reduce youth crime. See A. N. Doob, V. Marinos, and K. N. Varma, Youth Crime and the Youth Justice System in Canada: A Research Perspective (1995), at pp. 56-71. [ 75 ] The YCJA recognizes the importance of diminished moral culpability in a number of its provisions.

Section 3 sets out the principles applicable to all decisions under the Act, including sentence as noted in s. 38(2), set out below . I have underlined the most pertinent provisions with respect to the aspect of diminished moral culpability: 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity , (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and

reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [ 76 ] Layered upon C.N.A.C.’s reduced moral blameworthiness is the fact of his cognitive limitations.

Notably s. 3(1)(

c) provides that within the limits of fair and proportionate accountability, measures taken must be meaningful having regard to the young person’s needs and level of development and must respect and respond to the needs of young persons with special requirements. [ 77 ] Sections 38 and 39 of the YCJA address the purpose and principles of sentencing.

Section 38 is set out immediately below and the provisions most pertinent to C.N.A.C.’s cognitive limitations have also been underlined. It is important to note the instruction regarding parity and proportionality. Consideration of the least restrictive sentence must be considered in light of the principles of proportionality. The offences before me are serious and very concerning. C.N.A.C. has re-offended sexually against a young victim in a similar manner while undergoing treatment. He has failed to comply with what was intended to be a protective provision in the probation order, a no contact clause. Section 38(2)(

f) requires consideration of denunciation and individual deterrence, which figure significantly in arriving at the appropriate sentence for C.N.A.C. With respect to s. 38(3) I have noted the harm to the complainant which was foreseeable, especially in light of it being a similar repetition of sexual offending. Section 38(3)(d), below, notes consideration of time spent in pre-sentence detention: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public .

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

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

i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 78 ] Section 39(1), set out below, specifically addresses committal to custody. It enjoins the court to avoid the imposition of custody unless certain criteria have been met. In this instance the principal offence meets the criteria for a violent offence pursuant to s. 39(1)(

a) and a pattern pursuant to s. 39(1)(

c) within respect to sexual offending. A period of custody has been served by virtue of the remand prior to imposition of sentence; 4 months of actual time spent in detention. 39(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 79 ] Section 39(2), set out below, requires that the court consider alternatives to custody. This was the subject of active consideration at the sentencing conference and was a significant factor with respect to the pre-sentence detention. The Judicial Interim Release Report dated August 8, 2013 prepared by his youth worker, D. Zdunick, considered the lack of or inappropriate supervision in C.N.A.C.’s home by his mother.

She recommended against release until such time as the Ministry of Social Services could consider whether it would provide residential treatment options and an updated adolescent sex offender risk assessment could be completed. With respect to the latter, a risk assessment had already been provided to the Court by Dr. Legault which indicated that his risk was assessed to be high. Given the cogent information before the Court a further assessment was not seen to be needed. In any event, Ms. Zdunick referenced email correspondence with Dr.

Legault concerning her opinion that the risk to re-offend sexually remained high. 39(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38. [ 80 ] Section 39(3), set out below, guides the court when considering alternatives to custody. This Court is given to understand that C.N.A.C. qualifies for residential services through the Ministry of Social Services, should he be ordered not to reside in his mother’s home. When probation was imposed in September 2011, there was no suggestion in the pre-sentence report that C.N.A.C. reside anywhere other than in his mother’s home, despite the fact that Dr. Legault strongly recommended that he not reside with his mother.

There was a significant amount of information, some of which was referenced in the August 24, 2011 pre-sentence report, to indicate that supervision of C.N.A.C. was seen to be essential to compliance given C.N.A.C.’s age and cognitive challenges and that reliance upon the mother to adequately supervise was fraught with difficulty. Further, as discussed in the sentencing conference, C.N.A.C.’s home was set in the same neighbourhood as that of the complainants with respect to the previous offending behaviour and this was especially problematic given the issues around supervision.

The Court does not know how this was addressed during the sentencing hearing, but notes that while Dr. Legault’s report was dated after the pre-sentence report and that the probation order gave the youth worker authority to approve of the residence in which he was to reside.

In light of the background concerning placement in the mother’s home, C.N.A.C.’s stability in both the school and the remand setting outside of his mother’s sphere of influence, and the current availability of residential placement by the Ministry of Social Services, ideally in a residential treatment setting, the Court expects that there would be compliance with placement in an appropriate residential facility, which is a good and valid alternative to custody. 39.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. 39(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence. 39(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures. [ 81 ] In R. v. L.L.B., [2013] S.J.

No. 601 (SKPC), at paragraph 29 , I discussed diminished moral blameworthiness or culpability in the context of an offence committed by a young person just diagnosed with FASD (fetal alcohol spectrum disorder).

While that decision turned on other concerns; it is a significant reminder that s. 39(5) of the YCJA , noted above, prohibits the use of custody as a substitute for, among other things, appropriate mental health measures. [ 82 ] Open custody is not a preferred placement for C.N.A.C. given his tendency to be led into negative behaviours and the likely presence of more savvy negatively minded young persons in open custody. There is a history here of his having great difficulty in relating to and fitting in with same age peers. He has a history of having been bullied and beaten up by other youth in the community.

He stated during the sentencing conference that he has chosen to play with younger children because he did not expect them to hurt him. This susceptibility to mistreatment is well documented and sources at the conference commented upon his inclination to be drawn to the negative behaviours of other peers. Custody facilities often described as schools for criminal behaviour are not ideal for the vulnerable and easily influenced.

There was no evidence offered in this sentencing hearing of the ability of the Yarrow open custody facility to address or respond to the needs of the cognitively impaired. [ 83 ] In the event of an open custody sentence the youth worker, pursuant to the YCJA , determines the conditions while under community supervision. The court may only determine the conditions while under probation. Pursuant to the Act the court has the ability to monitor the offender’s progress while on probation and may address the ongoing suitability of the conditions imposed, including residence.

I have considered this in light of an apparent reluctance to address residence in the past. [ 84 ] C.N.A.C. has spent over 4 months on remand. The significance of this remand has been considered in light of the discussion in R. v. J.E.O . , [2013] S.J. No. 484 (SKCA) , my much earlier discussion of this issue in R. v. H.R.F. , [2007] S.J. No. 70 (SKPC) , my more recent decision of R. v. T.F.J ., [2010] S.J. No. 364 (SKPC) and pertinent provisions of the YCJA, including s. 39(8): Length of custody -- s. 39(8)

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in

section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under

section 94. While recognition is being given to the pre-sentence detention, is not being factored into the sentence given that further custody will not be imposed. [ 85 ] In addressing the pre-sentence detention, I have considered that C.N.A.C. cooperated with the sentencing conference process and this engendered delay. While he was on remand, some but not all of his programs continued. He continued to receive schooling and his psychologist met with him but the visits were not as regular and he did not attend group treatment.

Further he could not access some of the recreation that promoted his socialization and had been made available in the community; referring to the family based activities described by his community services worker and his Family Service Saskatoon mentor. He is very attached to his mother and it was the first significant period of time that he was separated from her. I have not attributed a specific ratio to the length of his pre-sentence custody.

It might be regarded as the equivalent of 6 or perhaps 8 months; either is significant to a young person with his background. [ 86 ] The sentence recommendations of all who have provided input, contemplate further adolescent sex offender treatment for C.N.A.C. Ms. Zdunick points out in her pre-sentence report that it typically takes about 24 months. I have assumed that he would undergo treatment for that length of time, notwithstanding his prior participation. The Crown and the youth worker, concerning the

length of custody contemplated a period of open custody, which would allow access to the programming in the community, but neither suggested that custody be for the full time frame of 24 months. Ms. Zdunick suggested 12 months open custody followed by 6 months supervision. The Crown suggested something in the order of 6 months open custody and 6 months supervision, followed by probation for 12 months. The Defense sought probation. [ 87 ] There is perhaps a last opportunity for C.N.A.C. to know success in the community in the youth justice system. He will be 17 at the end of this month.

Once he is 18 years of age the residential treatment option will no longer be available to him. Because of his age, it is a pressing matter that he be given the opportunity to participate in a residential treatment facility, which may provide supervision and structured support in something which more closely resembles a normal environment.

This Court considers that residential treatment is most suitable to the goal of addressing the underlying causes of his offending behaviour, thereby effectively preventing further offending and finds that it is in keeping with the purpose and principles of sentencing under the YCJA . C.N.A.C. has spent 4 months in closed custody while on remand.

This is a significant period of custody from the perspective of the sentencing goals of denunciation and individual deterrence; these goals may also be addressed with the significant restrictions that will accompany a probation order, including a condition that he not reside in his mother’s home. He has gained stability while in closed custody but neither closed nor open custody is the appropriate environment for him, where there are alternatives and given his needs which go to the goal of successful treatment.

If he is successful during the probationary period, he will nonetheless require support and structure as an adult. The appropriate sentence [ 88 ] C.N.A.C. must not return to his mother’s home for the foreseeable future; however this term may be addressed in his favour if sufficient progress with treatment is shown. Regular contact with his mother is important to him and needs to be respected.

Further to reinforce the no contact with the victim he must not be within a certain radius of the victim’s home, the size of which may be discussed with counsel. [ 89 ] The appropriate disposition is probation for 24 months. While I wish to receive input from counsel and the youth worker, I have in mind that the conditions should resemble those found in the previous probation order and the present undertaking. Ancillary orders regarding DNA and firearms are appropriate. ________________________________ S.P. Whelan, J