R. v. A.(J.), 2012 ONCJ 544

WARNING The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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 consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 disclosure) . . . (

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. COURT FILE No.: Region of Durham 998 Y18179 DATE: 2012·08·29 Citation: R. v. A.(J.) , 2012 ONCJ 544 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — J.J.A., a young person (No. 3) Before Justice J. De Filippis Heard on August 24, 2012 Reasons for Sentence released on August 29, 2012 Ms T. D’Eri ............................................................................................... counsel for the Crown Mr. A.

Risen ............................................................................................ counsel for the accused De Filippis J.: [ 1 ] The defendant was tried on an Information with eight counts involving two male youths; namely, that with respect to each of MR and

RG he committed sexual assault, sexual interference with a person under the age of 14, invitation to sexual touching with a person under the age of 14 and exposing his genital organs to a person under the age of 14. [ 2 ] The trial was held over nine heard over nine days between December 2011 and April 2012. I heard from the defendant, the two complainants, and five other witnesses. Judgement was delivered on May 25, 2012; see R v A.(J.) 2012 ONCJ 317 . Afterwards, the defendant brought a motion for mistrial because of an unsolicited letter I had received.

That motion was dismissed; see R v A.(J)(No. 2), August 8, 2012. [ 3 ] During the trial, I heard evidence from four youthful witnesses about sexual conduct with the Defendant including instances of group masturbation. Two of these witnesses were complainants; MR and RG. The Defendant agreed that there was group masturbation but disputed the other evidence of sexual conduct on his part. I rejected the Defendant’s evidence. My reasons for judgment included these comments: As already noted, I have no doubt that MR and the defendant engaged in sexual activity.

Notwithstanding the difficulties caused by the manner of interview, parental pressure and access to some shared information, MR’s report is consistent in this respect; there were numerous incidents of mutual masturbation followed by oral and/or anal sex. MR did not want to say these things and only did so because they are true. He was not successfully challenged about this essential account. It is clear the events occurred in the year before the defendant’s arrest. Whether they happened before that, when MR was under the age of 12, is less certain. This means consent is a defence.

Although the defendant did not argue that point, having denied the acts in question, the Crown must nevertheless prove this essential element of the offence. The interview technique and the interventions of MR’s mother are important; they create uncertainty about the extent to which MR was coerced into the sexual activity. They also mean I cannot be confident about the time period in which the events occurred. As previously noted, age is important in this case. MR provided inconsistent evidence about coercion.

It is clear MR was vulnerable and I accept his testimony that the defendant pressured him into participating in the sex acts. However, MR recanted an initial allegation of physical force and repeatedly stated he had been “manipulated”. At trial, he said he had previously underestimated the number of times the defendant manipulated him because he did not want to appear to be gay. But if he was coerced the number of times it happened does not say anything about his sexuality. His fear of being seen as gay is only an issue if he acquiesced to the acts.

Moreover, MR testified that sometimes he did not “go along with D’s manipulation”, again raising the possibility of consent. It may be that MR felt coerced but in all the circumstances, I cannot be certain the defendant forced him to act against his will. Accordingly, the charges involving MR must be dismissed. The Defence argues that RG’s evidence cannot be relied upon and points to inconsistencies among his prior statements and between that evidence and his trial testimony. The Defence suggests this is due to pressure from his mother, who was present for two interviews and the flawed interview technique…..

As is the case with MR, these observations suggest I be cautious in assessing the credibility and reliability of RG. I have done so and am convinced that he truthfully and accurately recounted the essential acts of oral and anal sex. RG, even more than MR, did not want to talk about these matters. In the circumstances of this case I take that as a mark of credibility and reliability. As noted earlier, the nature of these acts and the level of detail are not to be expected from young boys, especially one as immature as RG. Given his age, RG was incapable of consenting to such activity.

In any event, I accept that he was physically forced to do so on occasion by having his arm twisted. I am not troubled by the fact that RG continued to visit the defendant during the period covered by these events; he was a young boy who admired a youth four years his senior. His return to the defendant is not astonishing and does not undermine his credibility….. Significant details of RG’s allegations are corroborated by others. RG insisted that the defendant was always twisting his arm and also that this was done to force him to engage in the sex acts in question. Such

an act was witnessed by BP; he testified that he saw the defendant twist RG’s arm and force him to submit to anal intercourse. This, he said occurred in the defendant’s back yard fort. BP’s description of RG’s face while being sexually assaulted and his act of wiping the ejaculate from his body show the incident left a lasting impression on BP and is a sign of truth….. The Defence submits that DH’s evidence undermines that of RG. I disagree. RG testified that the defendant held his head and made him perform oral sex on him and DH in the tent at Mosport.

The defendant denied this and asserted that RG climbed on top of him while naked. DH said both were naked and that RG and the defendant were “touching each other’s privates”. He eventually admitted to do joining them. He added that he saw RG put his penis in the defendant’s buttocks. His trial testimony and demeanour support the conclusion that he saw and/or participated in sex acts that he is embarrassed to discuss. This likely explains the obvious problems with his testimony. Indeed, on RG’s version he is as guilty as the defendant in forcing oral sex.

At the very least, DH confirms that the defendant engaged sexual activity with RG. [ 4 ] I made the following findings: 1. The defendant masturbated, with one or more of the four youthful witnesses called by the Crown, on numerous occasions. 2. The defendant participated in acts of oral and anal sex with MR and RG for a period of time until shortly before his arrest at the age of 14. 3. It has not been proven beyond a reasonable doubt that the defendant forced MR to participate in these sexual acts. 4.

RG was not legally able to consent to the sexual activity but, in any event, on at least some occasions he was forced by the defendant to participate in them. The defendant is guilty of sexual assault, sexual interference, invitation to sexual touching, and exposing his genital organs with respect to RG. He is found not guilty of the four offences with respect to MR. [ 5 ] Sentencing in this matter is made more difficult because of the nature of the offence and the status of the offender. The Crown seeks

custody to be followed by a probation order along with a weapons prohibition and a DNA order. The Defence generally agrees with the terms of a probation order, made no submissions with respect to a DNA order and opposes a weapons prohibition. The principal difference between the parties is the issue of custody. In this regard, the parties agree that the defendant has already served two months in pre-sentence custody and that a deferred custody order (to a maximum of six months) is an available disposition. [ 6 ] The Crown argues that custody is warranted by virtue of s. 39(1) (

a) of Youth Criminal Justice Act . Counsel suggests that the violent nature of these offences is both force and harm based and that custody is needed to promote a sense of responsibility in the defendant and acknowledge the impact of his misconduct to the victim and community. The Crown suggests a fit sentence is one of nine to twelve months in closed custody, less pre-sentence custody. The Defence points out that the fact the YCJA provides a gateway to custody in this case does not mean such a sentence is appropriate.

In opposing custody and arguing for probation, the Defendant submits that he is a young first offender who has been assessed as being at a low risk of re-offending. The Defendant also relies on the fact that, in addition to two months of pre-sentence custody, the terms of his bail mean that he was house arrest for 12 months. [ 7 ] Sentencing for youths is very different than it is for adults. The YCJA begins with the following general declaration of principle: 3.

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

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and 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. [ 8 ] The purpose and principles of sentencing are set out in s. 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; and (

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.

(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 andprinciples set out in this

section [9]

Section 39 places limits on the ability of the court to impose a period of custody on a youth:

(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 thantwo years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act,

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

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

section 38.

(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, anddetermined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principlesset out in

section 38.

(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 withprevious 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. [10] The sentencing regime set out in the YCJA, like that with respect to bail, incorporates obvious hurdles to custody. I hadoccasion to comment upon this in a prior decision that was endorsed by the Court of Appeal for Ontario: In R v R.D. 2010 ONCA 899,atparagraph 41, Justice Rosenberg said:

Section 31 contributes to achieving the broader purpose of the Act, referred to earlier, to reduce reliance on incarceration for youngpersons at all stages of proceedings and to give the youth court alternatives to imprisonment. In that respect, I agree with the commentsof De Filippis J. in R. v.

A.(S.), 2004 ONCJ 184, at para. 10 as to the purpose of s. 31: Parliament has directed judges not to incarcerate young people pending trial unless it is absolutely necessary or to put itanother way, unless there is no other alternative available to the court and that, in my opinion simply mirrors Parliament's direction in theYouth Criminal Justice Act as to what should be done with young people who are found guilty after trial. Those provisions are also loudand clear and they direct judges to incarcerate young persons only as a last resort, subject to obvious exceptions. [11] In R. v.

C.D., 2005 SCC 78 , [2005] S.C.J. No. 79, the Supreme Court of Canada considered the phrase "violentoffence" in s. 39(1)(

a) of the Y.C.J.A. and adopted a narrow

interpretation that excluded “pure property crimes" and accepted "a harm-based definition that focuses, at least in part, on the bodily harm caused or attempted by a young offender ...". The Court clarified thatthis "would include both physical and psychological harm”. [12] Sexual assault is an assault of a sexual nature: R. v. Chase (1987) (SCC), 37 C.C.C. (3D) 97 (S.C.C.).Assault is defined in s. 265 of the Criminal Code as the intentional application of force without the consent of the victim. The strength ofthe touching is irrelevant.

Moreover, the Code makes it legally impossible for a person to consent to sexual contact in certain situations. Thus, sexual assault is not necessarily a crime of violence but it can be, and often is, committed in such circumstances. Indeed, wherethe victim is a child, psychological harm can be presumed. In any event, the offences in this case clearly involved violence because Ifound that RG was physically forced to perform oral sex and submit to anal sex. In addition, there is evidence of harm to him.

[ 13 ] The nature of the violence inflicted by the defendant on the victim is illustrated by the testimony of BP. He described an incident that occurred during the summer of 2009 in a fort in the defendant's backyard. BP said that he and the defendant were masturbating together when RG arrived.

He reported that: [the defendant] started to do like really, uh, disturbing inappropriate like disgusting things to [RG] ... with his butt and like he had made [RG] do oral sex on him ... and judging by [RG's] face he was really uncomfortable with it, but he idolized [the defendant] so it was like, oh, if [the defendant] says so. ...

Like [the defendant] was like grabbing him and he like had his arm bent up at one point ... he like put it behind his back like to like hold him there I guess, like if he resist he would [grind] it up more and like he does that a lot to [RG] ... and he was going with his penis up [RG's] butt in between the cheek area along the back area mostly and then he made [RG] give him oral sex which was another greatly disturbing thing ... like [RG] was pulling his pants down and I guess [the defendant] got tired of just waiting and ... started pulling them down faster. ... after the oral sex [the defendant] turned around and grabbed his arm, put it on ... like reefed it up his back and started. ... [RG] didn't say anything the whole time, just the look on his face was really unforgettable. ... he just let [the defendant] do his thing ... he's a lot younger. ... like seven at the time ...

After [RG] gave [the defendant] oral sex ... he spun [RG] around ... and started like pulling his arm back and rubbing his penis up [RG's] lower back and in between his butt cheeks and ... [ejaculated] right up his back ... and then he let [RG] go and then [RG] was kinda like disgusted, started like trying to wipe it off ... [ 14 ] As already indicated, the adverse impact of such offences on a victim as young as RG can be presumed. In any event, this is attested to by victim impact statements submitted by RG, his mother, and grandmother.

RG remains fearful, angry, has difficulty sleeping, and experiences nightmares. He remains under the care of a therapist. [ 15 ] I received three letters submitted on behalf of the offender. These are from family friends and attest to his good character. However, one questions the verdict and another was written before the verdict was given. The letters are of little relevance.

On the other hand, a pre-sentence report (PSR) and a psychological assessment prepared pursuant to s. 34 of the YCJA are quite helpful. [ 16 ] Both counsel agree that the PSR and assessment are “positive” in presenting the offender as an intelligent person who is at a low risk to re-offend and is highly motivated to move forward in a constructive manner. The documents also reveal matters of concern about his insight into the offences. The defendant is now 16 years old and does not have siblings. His parents separated when he was six.

Three years later, his mother and her new partner moved into the home in which the defendant resided with his father. The defendant reported that he was happy with this arrangement as he was able to see both parents on a daily basis and he got along well with his mother's new partner. The defendant's parents both have criminal records. The defendant reported that his parents drink too much, especially his mother. The Children’s Aid Society (CAS) has been involved with family off and on in the past and continuously since these charges were laid.

There is currently a Supervision Order in effect and the defendant's grandparents are now his legal guardians. The defendant is “angry because of charges and does not feel he should be sentenced as he did nothing wrong”. His mother acknowledged that the CAS has recommended group counseling for adolescent sexual offenders but said she would not agree to this "until the appeal is through and the conviction stands". Until then she wants the CAS to leave her son alone.

The defendant is described in the documents as "a warm and engaging young man - open and honest in discussing his history. - compliant, forthright, and respectful and it is clear that he does not understand the extremely serious nature of his charges". He "continues to deny the allegations against him and...does not express an interest in counseling with regard to his offenses, as he does not feel he is at risk to re-offend.

It is concerning that [the defendant] appears very calm and comfortable in light of being convicted of four charges of a serious nature...[the defendant] does demonstrate a strong desire to move forward with his life in a positive manner, and has a number of very positive goals”. The PSR and psychological assessment both suggest the defendant would benefit from an intensive community based counseling program. [ 17 ] The Defendant is young and has no criminal record. The PSR and assessment comment favourably upon him with respect to his potential recidivism and goals.

He did well while previously incarcerated for two months at MacKinnon House. These are important mitigating factors. [ 18 ] The aggravating factors are very serious: The victim was between seven and nine years old when the offences were committed; the defendant is four years older than the victim – a significant difference at that time of life; the defendant must have known that the victim looked up to him; the highly invasive nature of the sexual assaults; the continuing harm suffered by the victim; and, the fact that the defendant denies he has done anything wrong and feels no remorse.

With respect to the latter, the decision of R v K.G.B. 2005 NBCA 96 is instructive. That case involved a youth who pleaded guilty to sexual offences but otherwise showed little remorse. The New Brunswick Court of Appeal noted that a non-custodial sentence would not be reasonable in the circumstances as it would not reinforce societal values and have meaningful consequences especially in light of fact that the offender had not accepted responsibility for his actions (at paragraph 66). [ 19 ] The offences of sexual assault, sexual interference, and invitation to sexual touching in this case were violent acts.

The aggravating factors are such that custody is required and the mitigating ones do not save the defendant from this result. I conclude that a custodial disposition is consistent with the sentencing regime in the YCJA . Moreover, I agree with the range of sentence advanced by the Crown - it is a measured response to the offence and the offender. However, I take into account not only the two months of pre-sentence custody but also the year of house arrest – which must have been especially onerous for a person of the defendant’s age. [ 20 ] In all the circumstances, the appropriate sentence is one of six months.

The YCJA mandates that one third of such a sentence be served under community supervision. Accordingly, the defendant is sentenced to four months in closed custody and two months of community supervision.

The terms of the community supervision include those that apply to the one year of probation that is to follow: To report as required to a probation officer; reside where directed; take counselling as directed; not to associate with the victim and three other youthful witnesses at the trial or any member of their immediate family; and, not to be within 10 metres of any place the defendant knows or expects the victim to be present at, including any place the defendant knows the victim to live at, work at,

go to school at, or worship at. This sentence will run concurrently for the three violent offences. The sentence for exposing his genitals is probation as noted above. [ 21 ] I also issue the following ancillary orders: The defendant will provide a sample of his DNA and be subject to a weapons prohibition for 18 months. Released: August 29, 2012 Signed: “Justice De Filippis”