R. v. T.T., 2020 ONCJ 633

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent dis​closure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction CITATION: R. v. T.T., 2020 ONCJ 633 DATE: November 12, 2020 Indictment No. YN19-2085 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. T.T. P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on November 12, 2020, at ST. CATHARINES, Ontario

APPEARANCES: T. Morris Counsel for the Crown D. Protomanni Counsel for T.T. HARRIS, D. A. (Orally): Following trial, I found T.T. guilty of sexual assault. See R v T.T., [2020] OJ No. 3575. Crown counsel had elected to proceed by indictment. T.T. is before me today to be sentenced. Counsel have jointly submitted that Ishould make an order for deferred custody and supervision for 6 months followed by probation for 18 months. They also agreed that Ishould make a DNA order and a weapons prohibition pursuant to

Section 51 of the Youth Criminal Justice Act. I will give effect to thejoint submission. In reaching that decision, I have taken into account the following:

(1) The purpose and principles of sentencing as set out in the Youth Criminal Justice Act

(2) The facts of the offense

(3) The impact on the victim

(4) The background of T.T. I set out a

summary of the purpose and principles of sentencing under the Youth Criminal Justice Act less than three months ago in R vK.O.,[2020] OJ No. 3574. I am not going to repeat what I said then. I simply note that I have reviewed my comments as set out inparagraphs 9 through 36 of that decision and I adopt them here. I have also considered the directives from the Supreme Court of Canada in R v Friesen, 2020 SCC 9 , [2019] SCJ 100. Irecognize that this decision dealt with the sexual abuse of a child by an adult.

I am satisfied, however, that there was much to be found inthis decision that is applicable to any sexual assault case. For example, in paragraph 89, the Court noted that "All forms of sexual violence including sexual violence against adults are morallyblameworthy, precisely because they involve the wrongful exploitation of the victim by the offender.

The offender is treating the victimas an object and disregarding the victim's human dignity." I note, however, that in paragraph 91, the Court, the Supreme Court directs me that "These comments should not be taken as a directionto disregard relevant factors that may reduce the offender's moral culpability." The Court also notes that sexual assault is a broadly defined offense that embraces a wide spectrum of conduct. The offender's conductwill be less morally blameworthy in some cases than in others. Again, in paragraph 113, the Court notes that sexual offenses can cover a wide variety of circumstances.

I have also noted that the Court in R v Friesen provides a long, albeit not exhaustive list of factors to be considered in determining a fit sentence. These factors are covered through paragraphs 121 to 149. I will say more about these factors later. The facts of the offense are that the victim, J.L.P., T.T. and a number of other young persons were at a party hosted by a mutual friend. J.L.P. and T.T. were both drinking alcohol, and it would appear that both were drinking alcohol to excess that night. At some time, T.T. asked her to show him where he could find a cup so he could get a drink of water.

The two of them went to the kitchen. He closed the door behind them. He pushed her against the door and began to make out with her. She was okay with that. He then asked her to perform oral sex on him and she said no. He pushed her down to her knees. He placed his hand on the back of her head and pushed her head into his penis. His penis was in her mouth and she was choking and she pushed him away. He said he was sorry but then he did it again. She pushed him away, got up, and went back to where the others were. With respect to the impact on J.L.P., I was provided with a victim impact statement.

That statement reads as follows: "I was sexually assaulted. It has pretty much ruined my life. Ever since this happened to me I haven't been able to sleep. Every time I close my eyes I see his face. Every time I sleep I relive what he did to me. I wake up screaming, gasping for air and crying. I just want it to stop. I just want to have a good nights' sleep. It's been almost two years of this. I can't sleep alone or my panic attacks get worse. I have my dog that sleeps with me every night. He's pretty much trained to help me at night when my panic attacks get bad. He helps me calm down every time.

I can't drive down certain roads in the city I live in because he lives near my grandparents. I don't want to see him or think about him because my anxiety goes through the roof. I have to take the back roads just to feel safe when I'm going to my grandparent's house. I cannot go anywhere alone. I always need someone to come with me. I lost my first job because I would have to be alone with people I didn't know and I didn't feel safe. I felt trapped so they transferred me to another job but I was out of work for three months.

I then lost that job as well because I would have to be alone around strangers and I wasn't able to leave so again, I felt trapped and got panic attacks. The job I have now I'm never really alone but I see guys Talon's age walking and dressed like him and it sets something off and I can't breathe. I start shaking, then I have full-blown panic attacks and have to go to the back of my work and try to calm down. I saw a psychologist and he told me I have PTSD, depression, and extreme anxiety because of this. My family doctor has also said I have depression and extreme anxiety. This has been really hard on me.

My whole life has changed. I just don't want to be afraid anymore but I don't know if I'll ever feel safe again. I don't know if I can ever trust anyone again. This is how being sexually assaulted has affected me." With respect to the background of T.T. I was provided with a pre-sentence report. From that, I have learned that he is now 18 years of age. He was 16 at the time of the offense. His mother and father were in a relationship for 18 years prior to separating. They separated approximately 12 years ago.

There were issues of substance abuse and extramarital sexual activity on the part of the father as contributing factors to this break-up. Following that, his mother was involved in a ten-year relationship but that partner was mentally, emotionally, and physically abusive. They separated approximately one-year ago. His mother has sole custody of her children. That included T.T. up until he turned 18, at which point he is in his own custody. His mother advises that she has never had any significant or long-lasting issues with him, describing him as always having been a "great kid".

She was shocked with the charge and is struggling to believe that it happened. She has talked to his girlfriend in order to rule out inappropriate behaviour occurring with any other females. She has been assured that there have been no issues in the relationship with the girlfriend. He was always a good student. He was a rugby player. His mother indicates she has always been a very hands-on parent. There was one reported incident involving the use of a drug that apparently scared her son, and apparently there was no ongoing drug use.

In addition, his mother, I will use the word filtered, although I think it was a very intense filtering that went on with respect to allowing friends into the house until it could be determined that the person who supplied the drug had been filtered out. Since then, he has changed his peer group. He has two friends that his mother will allow over, and she also approves of his relationship with his girlfriend. Individuals at his high school confirm that he had earned 17.5 of the 30 required credits to graduate. He still needs to complete 2.5 compulsory courses and 10 electives.

His high school marks have ranged from 50 percent to 84 percent. He is currently not at the high school as he turned 18 and the plan has been to refer him to adult education.

T.T. says he shares a close relationship with his siblings. He typically enjoyed attending school. Following the laying of the charge, his school attendance suffered as he found it difficult to sit in class. He felt his peers were judginghim and there were times when he was taunted by classmates. He also stopped playing rugby. This was an activity that he had very much enjoyed. It was also an activity that he was very good at. Heearned the most valuable player award in grade nine, however, he found that his anger was building and he did not want to take it out onanyone while playing rugby and he stopped.

He has made a concerted effort to improve his peer group. He now associates mostly with family and his girlfriend. He does not likegoing out anymore. He suffers from anxiety and what he believes to be PTSD as a result of the charge. He is not currently involved inany counseling but has expressed the willingness to attend. He currently has a 10:00 p.m. curfew. He seldom goes out. Although heseldom goes out, the 10:00 p.m. curfew has been reasonable. As far as future aspirations, he indicates he would like to attend college andpursue a career in HVAC.

In determining the appropriate sentence in this case, the first issue before me is whether I have the jurisdiction to impose a custodialdisposition at all. I can only impose deferred custody if I can impose custody. Both Counsel and I have agreed that I can impose custodyby virtue of Section 39(1)(

a) of the Youth Criminal Justice Act since T.T. committed a "violent offense" as defined by the YouthCriminal Justice Act. "Violent offense" is defined in Section 2(1) of the Youth Criminal Justice Act as an offense "that includes as an element causing bodilyharm." Bodily harm is not defined in the Youth Criminal Justice Act, however, Section 2(2) of the Youth Criminal Justice Act providesthat "unless otherwise provided words and expressions used in this act have the same meaning as in the Criminal Code." Bodily harm isdefined in

Section 2 of the Criminal Code of Canada as meaning “any hurt or injury to a person that interferes with the health or comfortof the person, and that is more than merely transient or trifling in nature.” In the decision of R v McCraw, (SCC), [1991] 3 SCR 72, the Supreme Court of Canada at paragraphs 21 through 23makes it clear that "any hurt or injury" includes psychological harm as well as physical harm. In R v C.D.; R v C.D.K.,2005 SCC 78 , [2005] 3 SCR 668, the Supreme Court of Canada at paragraph 20 applied the abovedefinition to the Youth Criminal Justice Act.

I note that this decision came out before the definition of "violent offense" was added to theYouth Criminal Justice Act. In fact, it would appear when looking at the history of the amendment, this decision likely provided theimpetus to amend the Youth Criminal Justice Act to include that definition. That subsequent amendment, however, does not affect theabove reasoning. Everyone here agrees that the offense committed included as an element the causing of psychological harm and therefore, qualified as a"violent offense" within the meaning of the Youth Criminal Justice Act.

That then leads us to the second legal issue that is before me. Was the offense one that caused or attempted to cause serious bodilyharm? If it is, deferred custody -- a deferred custody order is precluded by Section 42(5) of the Youth Criminal Justice Act. Going back to R v McCraw at paragraph 23, the Supreme Court of Canada stated that serious bodily harm is "any hurt or injury whetherphysical or psychological that interferes in a substantial way with the physical or psychological health or comfort of the complainant." Both Counsel have submitted that the case before me does not reach this level.

I was not so certain especially after reading the victimimpact statement, but Counsel provided me with the decision of the Ontario Court of Appeal in R v L.T., [2019] ONCA 535 where theCourt of Appeal upheld a deferred custody order. The facts in that case were much worse than the ones here. They included forcedvaginal intercourse and forced oral sex which culminated with the offender ejaculating in the victim's mouth. In light of the decision ofthe Ontario Court of Appeal in that particular case, I am satisfied that the case before me does not reach the level of involving seriousbodily harm.

I referred earlier to factors listed in R v Friesen that would be relevant with respect to sentencing. The ones that I have chosen as being applicable in this case are:

(1) The likelihood to re-offend

(2) The duration and frequency of offense or offenses

(3) The respective ages of the offender and the victim

(4) The degree of physical interference. With respect to the likelihood to re-offend, the material that has been put before me indicates that those people who know T.T. believe that what happened was out of character for him. That is actually an understatement of what they believe. They question whether or not he could have committed the offense. I note that he has no prior record, he had done well in school before, he has the support of family and friends, he has a girlfriend who indicates that his behaviour with her is not consistent with what I have found him guilty of.

I note that alcohol was involved on that particular occasion. I note that there has been some social shaming as a result of his being charged and of his being found guilty. He has expressed a willingness to participate in counseling. I am satisfied that the likelihood of him re-offending is relatively low. I have combined the degree of physical interference and duration and frequency of the offenses rather than repeat myself going through them. The facts, as I found them in this case, were that he forced his penis into her mouth twice. This occurred over a period of what I calculate to be less than one minute.

He stopped briefly after she objected the first time and he stopped entirely after she pushed him away the second time. Now I am not attempting to minimize what was done here. I will repeat what I said earlier quoting the R v Friesen , paragraph 89 . "All forms of sexual violence including sexual violence against adults are morally blameworthy, precisely because they involve the wrongful exploitation of the victim by the offender.

The offender is treating the victim as an object and disregarding the victim's human dignity." What I am attempting to do by referring to the specific facts of this case is to point out where this offense falls on the "wide spectrum of behaviour", also referred to in R v Friesen . With respect to the respective ages of the parties in this case, their ages were similar. There is no power imbalance arising out of the respective ages.

Any power imbalance might have existed because of their respective strengths, although I am not giving effect to that because I really do not know how strong T.T. is compared to her, although I did not hear that she was actively involved in rugby. I am also mindful of the fact that R v Friesen can provide me with some guidance but it really is not applicable in this case in light of comments that I made about the fact that the Youth Criminal Justice Act contains its own sentencing regime and is completely separate and different from that in the adult system.

I am very mindful of the directions given to me by the Youth Criminal Justice Act . I have repeatedly reminded myself that

Section 38 of the YCJA requires that any sentence I impose be the "least restrictive sentence that is capable of achieving the purpose set out in Subsection 1." It must also "be the one that is most likely to rehabilitate the young person and reintegrate him or her into society and promote a sense of responsibility in him and acknowledgment of the harm done to victims in the community." I also remind myself that Section 39(2) requires that I not impose a custodial sentence under

Section 42 unless I have considered all alternatives to custody that are reasonable in the circumstances, and determine 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. I am satisfied that the joint submission that has been put before me offers such a reasonable alternative and it is for that reason that I am giving effect to this. For all the above reasons I make a deferred custody and supervision order for 6 months followed by probation for 18 months. During the period of deferred custody and supervision, T.T. will be subject to the statutory conditions requiring him to: (

a) Keep the peace and be of good behaviour

(

b) Appear before the Youth Justice Court when required by the Court to do so (

c) Report to the provincial director immediately on release and then be under the supervision of the provincial director or a person designated by the Youth Justice Court (

d) Inform the provincial director immediately on being arrested requesting by the police (

e) Report to the police or any named individual as instructed by the provincial director (

f) Advise the provincial director of the young person's address or residence on release, and after release report immediately to the clerk or the Youth Justice Court or the provincial director any change:

(1) In that address

(2) In the young person's normal occupation including employment, vocational or educational training and volunteer work

(3) In the young person's family or financial situation, and

(4) That may reasonably be expected to effect the young person's ability to comply with the conditions of the order (

g) Not own or possess or have any control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance except as authorized by the order, and (

h) Comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society. In addition, he will be required to: (

a) Cooperate with the provincial director and sign any releases necessary to permit the provincial director to monitor his compliance and he must provide proof of compliance with any condition of this order to the provincial director on request (

b) Make reasonable efforts to obtain and maintain suitable employment or attend school or any other place of learning, training or recreation that is appropriate (

c) Reside with his mother or in a place that the provincial director approves (

d) He will remain in his residence or on the property of his residence daily between the hours of 7:00 p.m. and 6:00 a.m. except:

(1) For any medical emergency involving him

(2) For purposes of traveling directly to and from or being at -- to and from or while at employment or education

(3) He must provide written justification to the provincial director within 72 hours of any such absence during his curfew hours, and

(4) With the prior written approval of the provincial director, the written permission of the provincial director is to be carried with him during these times (

e) Remain within the Province of Ontario (

f) Not contact or communicate in any way either directly or indirectly by any physical, electronic or other means with J.L.P. and not attend within 20 meters of any place you know her to live, work, attend school, go to church or any place you know her to be (

g) You will attend and actively participate in all assessment counseling or rehabilitative programs as directed by the provincial director and complete until the satisfaction of the provincial director. The terms of the probation will require that you: (

a) Keep the peace and be of good behaviour (

b) Appear before the Youth Justice Court when required to do so by the Court (

c) Notify the Court or the youth worker in advance of any change of name or address and properly notify the Court or the youth worker of any change of employment or occupation (

d) Report to a youth worker within two working days of completing your deferred custody and supervision order and after that, at all times and places as directed by the youth worker or any person authorized by the youth worker to assist in your supervision. (

e) You will cooperate with your youth worker. You must sign any releases necessary to permit the youth worker to monitor your compliance and you must provide proof of compliance with any condition of this order to your youth worker on request. (

f) You will not contact or communicate in any way, directly or indirectly by any physical, electronic or other means with J.L.P. and you will not attend within 20 meters of any place you know her to live, work, go to school, attend church or know her to be.

(

g) You will attend and actively participate in all assessment counseling and rehabilitative programs as directed by the youth worker and complete them to the satisfaction of the youth worker. (

h) You will make reasonable efforts to seek and maintain suitable work or attend school or an education or training program approved by the youth worker. I also make the following ancillary orders: Sexual assault is a primary designated offense and I make an order authorizing the taking from T.T. of any number of samples of one or more bodily substances including blood that are reasonably required for the purpose of forensic DNA analysis. Pursuant to Section 51(1) of the Youth Criminal Justice Act for the next two years.

T.T. is prohibited from owning, possessing or carrying any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance. Finally, I make an order that a copy of the pre-sentence report shall be given to the provincial director and to the youth worker. END OF REASONS