Her Majesty the Queen - v. -, 2015 SKPC 079

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2015 SKPC 079 Date: May 6, 2015 Information: 37399591 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - N.C.

Appearing: John Syrnick For the Crown Andrew Appolloni For the Defence 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 F.M. DAUNT, J _____________________________________________________________________________ [1] N.C. entered a guilty plea to a charge that he did, between the 1st day of December, A.D. 2013 and the 23rd day of May, A.D.2014, commit a sexual assault on the victim, contrary to

section 271 of the Criminal Code. N.C. was 12 years old on the first of thosedates, and 13 years old on the last of those dates. [2] On May 23, 2014, the six-year-old victim disclosed to a school counsellor that the previous day his cousin took him to thebathroom and “stuck his penis in my butt.” This would put the likely date of the offence at May 22, 2014, when N.C. was 13 years old. The victim agreed to this because his cousin promised him a turn on his video game if he complied. N.C. wore a condom and, it wouldseem, used some kind of lubricant. When the victim said that it hurt, N.C. stopped.

The victim told his counsellor that he didn’t like itbecause it didn’t feel very good. N.C. told him not to tell anybody or “it would be bad.” There was no overt threat, but the victimthought he might get hit if he told anybody. There was also no violence, other than the violence inherent in the act itself. The victimwas taken to a doctor to be examined. No information was presented to this Court as to the results of that examination. Thus I do notknow if the victim suffered any physical injury. No victim impact statement was filed.

The only evidence of the psychological impacton the victim was that, after the incident, he was caught putting Lego pieces between his butt cheeks. [3] N.C. was interviewed by police and admitted to the incident. In the Presentence Report and the Psychological Assessment,he takes responsibility for the offence and seems to express genuine remorse and empathy for the victim. He scored a “low” on the LSI-SK risk assessment. He is a low risk to re-offend sexually, but that opinion is given “with caution.” He has no substance abuse issues. He attends school regularly, although he is one year behind his age group.

He does not have a negative peer group. His only risk factoron the LSI-SK risk assessment was his use of leisure time. He had many strengths. He suffers from ADHD, but is managing that withmedication. He is mostly compliant with his treatment. His grandparents think he may have been exposed to alcohol in utero and wouldlike him to be assessed for possible FASD. He was apprehended from his parents at the age of five, due to violence and neglect. He isbeing raised by his grandparents, and they are stable and supportive. N.C. is very anxious at the prospect of being separated from them.

This is understandable, given his background. He is a good candidate for the Adolescent Sex Offender Program offered in thecommunity. [4] N.C. has no criminal record. He has never been arrested before. Nor does he have a history of extrajudicial sanctions. Neither have there been any further allegations of criminal behaviour of any kind since May of 2014. [5] The Presentence Report recommends a period of probation with conditions appropriate to the offence and N.C.’s specificneeds.

There is a 24 week Adolescent Sex Offender Program offered in the community, but the PSR notes that treatment can take up totwo years to complete. The Psychological Assessment also makes recommendations for managing N.C.’s risk in the community. Itseems neither author contemplated that N.C. might go into custody.

The maximum length of any sentence for this offence, eithercustodial or non-custodial, is two years under the YCJA. [6] Crown takes the position that a sentence of 18 months secure custody, comprising 12 months custody and 6 monthssupervision, is required in this case, given the seriousness of the offence and the range of sentence handed down by our Court of Appeal. The Crown relies on the cases of R v V.I.C., 2005 SKCA 95; 269 Sask R 131 [V.I.C.], R v D.W., 2006 SKQB 460; 287 Sask R 237, R vC.S.U., 2006 SKCA 120; 289 Sask R 28, and R v B.E.O., (SK PC), 392 Sask R 72 (Prov Ct).

Because the offence isone in which “the young person causes or attempts to cause serious bodily harm,” a deferred custody order is not available according tos. 42(5) of the YCJA. V.I.C. stands for the proposition that the offence by its very nature causes serious bodily harm, without furtherproof of physical injury or psychological harm. [7] Defence submits that sentencing under the YCJA is an individualized process.

While the parity principle is important, it mustbe balanced with the other purposes and principles of sentencing under the YCJA, which emphasizes the long-term protection of thepublic through rehabilitation of the offender. He distinguishes the cases relied on by the Crown for a number of reasons. He relies on Rv B.D.L., 2013 SKQB 355 [B.D.L.], as a precedent for a lengthy period of probation in this case. He says s. 39(2) mandates that theCourt consider all alternatives to custody that are reasonable in the circumstances.

He requests the least restrictive sentence required toprotect the public, being a strict probation order long enough to allow N.C. to complete the 24 week Adolescent Sex Offender Program. [8] I have also considered R v L.T.W. (1995), (SK CA), 131 Sask R 47 (SKCA), which was considered in R vB.D.L. Although it was decided under the Young Offenders Act, the circumstances of the offence in that case are very similar to the casebefore me. Furthermore, a deferred custody and supervision order was not an available disposition under the YOA.

[9]

Section 38 of the YCJA requires the Court to “hold a young person accountable for an offence through the imposition of justsanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration intosociety, thereby contributing to the long-term protection of the public.” The surest way to protect the public in the long term is to imposethe sentence most likely to rehabilitate the accused, given his particular needs and circumstances. It is an individualized process. [10] The first question is this: is custody an available sentence under s. 39?

V.I.C. dealt with a previous version of the YCJA, inwhich “violent offence,” which opened the gateway to custody, was not defined, but “serious violent offence,” which precluded adeferred custody order, was defined. The recent amendments define a violent offence as “an offence committed by a young person thatincludes as an element the causing of bodily harm” and includes an attempt or threat to commit such an offence. N.C. is being sentencedfor the offence of sexual assault, contrary to

section 271 of the Criminal Code. Causing bodily harm is not an element of that offence. Contrast s. 271 to s. 272(1)(c), sexual assault causing bodily harm. That offence clearly meets the definition of “violent offence” in theYCJA.

Section 271 does not. [11] Furthermore, section 42(5) precludes a deferred custody order for “an offence … in the commission of which a young personcauses or attempts to cause serious bodily harm.” Given the reasoning in V.I.C. and R v McCraw, (SCC), [1991] 3 SCR72, N.C. clearly committed such an offence. It seems absurd that an offence is too violent to allow an alternative to custody (deferredcustody order), but not violent enough to allow custody in the first place.

Nevertheless, in the recent amendments, Parliament did add athird category of violent offence, “an offence in the commission of which a young person endangers the life or safety of another personby creating a substantial likelihood of causing bodily harm.” Parliament added this definition in response to the Supreme Court ofCanada decision in R v C.D.; R v C.D.K., 2005 SCC 78; 261 DLR (4th) 257; [2006] 5 WWR 195; 376 AR 258; 54 Alta LR (4th) 67; 203CCC (3d) 449; 34 CR (6th) 323; 343 NR 1; EYB 2005-98962; JE 2006-64; [2005] SCJ No 79 (QL); [2005] ACS no 79; 360 WAC 258;67 WCB (2d) 867.

It is meant to cover the situation where a youth has not been violent, but the act is so inherently dangerous that itshould open the door to custody for the youth committing it. However, the wording is broad enough to include N.C.’s offence. I find heendangered the safety of D.M. by creating a substantial likelihood of causing bodily harm, in the sense of psychological harm, if notphysical injury. [12] Having found that N.C. has committed a “violent offence,” and therefore custody is an available sanction, I must decide whatis a fit sentence for this offender for this offence.

Section 39(2) requires this Court to consider all alternatives to custody that arereasonable in the circumstances. The Court cannot impose custody unless it finds that there is not a reasonable alternative that accordswith the purposes and principles of sentencing in

section 38. Subsection 39(3) requires the Court to consider the alternatives to custodythat are available, the likelihood that the young person will comply with a non-custodial sentence, and the alternatives to custody thathave been used in respect of young persons for similar offences committed in similar circumstances. [13] The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person forthat offence. There is no doubt that the offence is a serious one, a major sexual assault.

However, N.C. was either 12 or 13 years old atthe time of the offence, thus below the age of consent himself. The Criminal Code is internally inconsistent in that he could not be triedfor an offence contrary to

section 151 or 152, but he can be tried for the arguably more serious offence contrary to s. 271. Given hisyoung age, his degree of responsibility is diminished somewhat. The principle of reduced moral blameworthiness has now been includedin

section 3 of the YCJA. The younger the offender, generally speaking, the less morally blameworthy are his actions. In V.I.C., theoffender was 14 years old at the time of the offences, which, at the time, was the age of consent. L.T.W. was 14 or 15 years old, again,above the age of consent at the time. U.C.S. was 16 years old. D.W. was 17, although he was developmentally challenged. Thoseyouths were all over the age at which one can legally consent to sexual contact.

Being below the age of consent reduces the degree ofresponsibility of this offender for this particular offence. [14] The sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the sameoffence committed in similar circumstances. It is important to remember that sentencing is an individualized process, and no twooffenders come before the Court having committed exactly the same crime in exactly the same circumstances. With that caveat, I turn tothe precedents. [15] V.I.C. committed numerous assaults on his young victim over an extended period of time.

V.I.C. had serious and untreatedsubstance abuse problems. He had cognitive difficulties which made him unsuitable for the Adolescent Sex Offender Program, even if ithad been offered in his home community, which it wasn’t. He was living with his sister, who did not have the skills to manage hisbehaviour. The Court of Appeal found that the only available sentence that would meet the needs of the offender, given hiscircumstances, was one of secure custody and supervision. [16] U.C.S. committed a sexual assault on a young woman asleep at a party.

He was also being sentenced for a break and enterand 12 counts of breaching bail and probation conditions. He was a high risk to re-offend. He had a criminal record. He was out ofcontrol and not manageable in the community. Even so, his original sentence of 24 months closed custody and supervision followed byone year probation was reduced on appeal to 18 months secure custody and supervision. A secure custody sentence was found necessaryto impose the structure necessary for programming and counselling.

[ 17 ] The assault in B.D.L. was much less serious than the assault in the case at bar. It was much less intrusive on a victim closer in age to that of the offender. In his particular case, a sentence of two years probation was not considered too long. [ 18 ] L.T.W . assaulted the very young victim two times, resulting in a tear to her hymen and possibly a fissure on her anus. The facts of that case are the most similar of all the cases filed by Crown or Defence. The youth, found guilty after trial, received two years probation.

In dismissing the Crown appeal, Madam Justice Jackson stated at paragraph 20: But nor are we persuaded to interfere with the disposition of two years probation. The youth court judge specifically said he did not accept the allegations of violence attributed by the Crown to L.T.W. He was not persuaded L.T.W. would benefit from open or secure custody or that either was necessary for his rehabilitation. He had the benefit of various psychological and psychiatric reports in coming to this conclusion…. L.T.W. had no prior record and a good reputation in his community.

Finally, from the time of initial investigation to receipt of disposition was 18 months. An additional eight months have passed. Two points stem from this: (

i) no further occurrences were reported which is some evidence of low risk; and (ii) adding an additional six months to this process would be inappropriate. [ 19 ] Similarly, N.C. has no prior record. Since May 23, 2014, there have been no further allegations of sexual violence against this or any other victim. He has been compliant in the community. The writer of the Presentence Report opines that he can be successfully managed in the community. He is a low risk to re-offend sexually.

Although that assessment was given “with caution,” there is no evidence of an elevated risk. [ 20 ] The goal of sentencing under the YCJA is to ensure the long-term protection of the public. If N.C. is taken away from his family and placed in a secure custody facility, he is going to meet new friends who are at much higher risk than he. He may learn things there he would be better off not knowing. He is likely to come out a higher risk to commit all kinds of offences. This would reduce public safety, not enhance it. A rehabilitative sentence is the most likely to ensure the long-term protection of the public.

I find the best way to rehabilitate N.C. is to allow him to remain in the community and take appropriate treatment and education. [ 21 ] N.C. has been on an undertaking since September 3, 2014. After his guilty plea, he was released on an undertaking with several more conditions. After an initial glitch in his reporting obligation, he has been reporting regularly and has begun his sex offender treatment. I find a sentence of two years probation is appropriate, but I will reduce it in consideration of the steps he has already taken to begin his rehabilitation.

The sentence is therefore 18 months probation with conditions as recommended in the Presentence Report and the Psychological Assessment. There will be an order releasing the Psychological Assessment to the Provincial Director to aid in case planning. There is also a mandatory DNA order and a mandatory firearms prohibition pursuant to s. 51 of the YCJA for a period of two years. [ 22 ] Dated this 13 th day of May, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. _____________________ F.M. Daunt, J