R. v. H.H., 2016 ONCJ 890

CITATION: R. v. H.H. , 2016 ONCJ 890 DATE: February 29, 2016 Information No. 14 Y26003-02 15 Y18334-00 15 34906-00 ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT IN THE MATTER OF the Youth Criminal Justice Act , S.C. 2002, c.1 HER MAJESTY THE QUEEN v. H.H. R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE M.S. BLOCK on February 29, 2016, at OSHAWA, Ontario PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4 AND 517(1) OF THE

CRIMINAL CODE OF CANADA APPEARANCES : P. Thompson Counsel for the Crown D. Hodson Counsel for the Young Person MONDAY, FEBRUARY 29, 2016 PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4 AND 517(1) OF THE CRIMINAL CODE OF CANADA R E A S O N S F O R S E N T E N C E BLOCK, J. (Orally): H.H. was convicted of several offences arising largely out of events that took place in 2013 in which a 14-year-old girl was recruited and then proffered for money for sexual services in Toronto.

It should be said at the outset that H.H. had no proven role in the recruitment of this fragile youngster, but she certainly did have an active role in advertising the sexual services of both herself and the youngster and then managing the actual sale, including providing prices for various forms of sexual activity.

Following the very young person’s return to her family there were a series of very callous outbursts on the part of H.H. which were certainly intimidating and intended to deter any resort to the police authorities and had a significant aggravating factor in terms of that youth’s estrangement from her community. There were a series of further offences including, most serious by far, one of perjury which involved H.H.’s testimony in a related proceeding involving an adult. Of course, as with all youths, the sentencing issue is the imposition of a just sanction that carries with it meaningful consequences.

The other principle that I have to employ in this situation is the principle of totality, although it is likely the vaguest of possible principles involved in sentencing. I probably never read a useful definition of the principle of totality. I interpret it in these circumstances to be that, although the aggregate of sentences facing H.H. could well approach, a manslaughter or attempt murder sentence, this is a situation where the total amount of sentence should not approach a sentence of that magnitude being in the upper single digits of penitentiary time.

That foreshadows my view of the general sentencing issues involving H.H. It is not possible when considering the seriousness of these offences, the circumstances in which they took place, H.H.’s age, relative maturity, strong character, troubled background and lengthy previous record, to conceive of a meaningful sanction which is not the equivalent of a penitentiary sentence for these offences. I am in agreement with the Crown that an appropriate sentence for H.H. will be an adult sentence. An adult sentence does not mean necessarily the same sentence an adult would get in these circumstances.

A 30-year-old with similar record, similar antecedents and similar crimes would attract a much longer sentence than H.H. She committed these offences while she was a youth, and her background is one where, it is safe to say, H.H. is presented with a number of serious challenges. The background is captured in the pre-sentence report that this Court has had an opportunity to review, a pre-sentence report prepared by

one Kristen Merritt, filed as an exhibit in this matter. There is a report from the St. Lawrence Youth Association dated January 15, 2016. There is a psychiatric report from November 2, 2015 which includes, as an addendum, a report from the Durham Family Court Clinic’s assessment pursuant to

section 34 order which is dated November 5, 2015. I think it’s fair to say that the psychiatric report and report of the Durham Family Court Clinic provides a more sobering and pessimistic evaluation of H.H. than does the St. Lawrence Youth Association, but they all refer to a troubled and somewhat dysfunctional childhood with the loss of persons that H.H. looked up to throughout childhood as protectors and caregivers and quite a bit of dislocation in terms of primary caregivers.

It is also clear that, since about age 11, H.H. has exhibited features of a serious conduct disorder which has, to this point, been largely resistant to treatment. It is also clear from the reports of multiple persons who have prepared reports over the years, and I have had access to some of those reports including a Durham Family Court Clinic assessment dated January 24, 2013, that H.H. is articulate, focused, intelligent and determined. The difficulty is H.H., to this point, has a deep personal pessimism about her own prospects of making it in a legitimate way in this world.

In the absence of positive adult role models H.H. has essentially steeped herself in criminality and has not in any way decisively broken from that. H.H. is a young person and the Court does not write off young people. A person with this much intelligence and apparent personal strength should not be written off as a candidate for rehabilitation.

I am convinced the overall approach should be to impose a penitentiary sentence minus, of course, pre-sentence custody calculated at a rate of one-and-a-half-to-one as is appropriate for an adult sentence, but also impose a very lengthy probation order to give her a real shot at personal rehabilitation and relative personal happiness, which she is owed. Accordingly, I want to take a look now at the offences related to prostitution which arise out of the events of September 2013.

I do want to remark on a feature of this offence being a level of callous indifference to the very young person which is unmistakable in these circumstances, may have well been shown to H.H.in her own travails going through life. As an aggravating feature at this sentencing hearing that callous indifference, as indicated featured in some of the very toxic communications and criminal communications that followed this offence, has occasionally been exhibited in custody and has been remarked on by various supervisors in the facilities in which the pre-sentence custody has been served.

Now, the co-accused, R.C., was sentenced to two years on prostitution-related offences. I have to say that it was a joint submission and it was not unreasonable, and thus I was required to give effect to it. I thought in R.C.’s case that the sentence was, while reasonable, on the high end of the range, H.H. stands in a different position to the Court in relation to these offences, not just because of her relative sophistication compared to R.C., but in her control over the very young person while the acts of prostitution were being exercised.

In effect, not the recruitment role of the other individual, but a management role. Her significant pre-existing criminal record also puts her in a different situation. It was my view that if the sentence imposed on R.C. was a two-year sentence, H.H. should get two and a half years aggregate for those offences. That is a sentence that reflects the principle of totality. It may well be thought that a figure of three years would be the appropriate one, but I am determined not to impose a sentence which would vault this sentence into an attempt murder or manslaughter range.

Accordingly, a sentence of two and a half years will be imposed as follows. On the attempt to procure count, a sentence of 18 months. On the exercise control count, a sentence of 2 years. Live off the avails of a person under 18, 18 months. Trafficking in a person of that age, a sentence of 2 years. The intimidation count to a sentence of 1 year, all of those sentences concurrent one to the other. In relation to the count of perjury, a sentence of one year consecutive is appropriate in these circumstances. In relation to the obstruct peace officer, a sentence of one half year.

In relation to a series of adult counts faced by H.H., a series of four counts of fail to comply with orders while in custody, a sentence of one half year in relation to all of those counts concurrent one to the other and concurrent to the one half year for obstruct peace officer. In other words, the sentence of the Court is one of four years. Now, Mr. Hodson, Ms. Thompson, how many days to date from incarceration? MS. THOMPSON: So January 21st of 2014 was the arrest date, Your Honour. Today’s date, February 29, 2016. So we have 365 days times two and then a further 39 days. I’m just doing that math.

THE COURT: Seven sixty-nine? MR. HODSON: I have 769, Your Honour. THE COURT: Thank you. MS. THOMPSON: Thank you. THE COURT: So the decision of R. v. Summers applies. That 769, since H.H. has been sentenced as an adult, in my view is worthy of one-and-a-half-to-one consideration. That would be – will you excuse me for a moment. I have 1,154 days. Do counsel agree with that? MR. HODSON: That’s consistent with my math, Your Honour.

MS. THOMPSON: I need a calculator. It sounds right. THE COURT: That is my figure here. MS. THOMPSON: Thank you. THE COURT: Turning again to the sentence, four years, that leaves me with a raw figure of 1,460 days. MS. THOMPSON: Correct. THE COURT: I have a balance, 306. MS. THOMPSON: So do I. THE COURT: That’s the remainder of your sentence, 306 days of custody. Now, probation. You really hate probation, and I have got to give you a shot at avoiding this kind of mayhem in your future. You are intelligent and you are focused and you cannot do it on your own. There is going to be three years of probation. You will take counseling for issues as identified by Dr. Richard Meen in the

section 34 assessment as directed by your probation officer. You will also seek and maintain education and/or employment as required by your probation officer. You need to finish that grade 12 and everything that leads up to it and get some chance of getting employable skills. I know that counsel both made submissions in terms of terms of probation, but I want to keep it simple. Are there impassioned requests for additional terms of probation? MS. THOMPSON: Yes.

Of course the Crown would seek no contact conditions and remain-away conditions with respect to the victim in this matter, and I would also suggest with respect to Cain Leach-Francis and R.C., at a minimum. THE COURT: You are not to have any association or communication whatsoever with T.T., and if you want to find your way back into custody any form of communication with her would be an excellent way to do that. In respect of the others, Madam Crown submitted an actual list on the last occasion, did you not? MS. THOMPSON: I believe I did. THE COURT: Okay.

That list is going to be – if it is not already, it is going to be made an exhibit to these proceedings, it is going to be forwarded to the probation officer and there will be the additional clause that you are not to communicate with or associate with anyone specifically disapproved of by your probation officer. Obviously, this probation order requires reporting. You will report immediately after your release to a probation officer and after that as they require, and you will live at a place approved of by your probation officer.

Now, reading your record again over the weekend, I meant no offence when I said you are not very good at probation orders, but it is a simple, hard fact of life, that up until now you have not obeyed them, particularly in respect of reporting, and you also have not faced much in the way of sanction for them. You are now, of course, an adult and you will receive an adult sanction for breaches of probation. Any failure to report as required or any other breach of this probation order gets you before an adult court who is instantly going to have an opportunity to see the record that is before them in respect of you.

You will not get a lenient reception with this record, so you have to do your very best to obey the letter and spirit of these orders that I am imposing on you. Now, I believe the prostitution-related offences all carry primary DNA. MS. THOMPSON: Sorry, I had – I believe I addressed that on the last occasion, and I apologize, I don’t have my list with me. I thought that some were secondary designated DNA offences. THE COURT: We will just make it primary on the trafficking. I am pretty confident on that one, trafficking in a person under the age of 18. MS.

THOMPSON: Just on that note, Your Honour, my recollection is that you found H.H. guilty of the exercise control count, but not the trafficking count. THE COURT: Correct, thank you. Thank you. Can you give me the

section number on that one again? Thank you. I’ll make the sentence on the exercise control one of two years. MS. THOMPSON: Thank you. THE COURT: I’m just looking for the DNA section. MS. THOMPSON: Pardon me?

THE COURT: I’m just looking for DNA. MS. THOMPSON: Yes. So DNA, and I apologize, I don’t think I have my prior list immediately handy, but DNA is available on the procuring and on the exercise control. It is also available on the perjury. I believe it’s secondary on the procuring and the perjury and primary on the exercise control. THE COURT: Right. We’ll make it on the exercise control, thank you. MS. THOMPSON: Thank you. MR. HODSON: Your Honour, just for my tracking, my understanding was when you first were delivering the sentence that the control had already been set at two years, and knowing Ms.

Thompson, I was going to rise and advise that it wasn’t under 18 per se, but.... THE COURT: Thank you, I appreciate that. So my correction of myself was absolutely unnecessary. MR. HODSON: Yes. THE COURT: All right, thank you. All right. Any other ancillary orders? MS. THOMPSON: Yes. The Crown had sought a weapons prohibition, I believe, on the last occasion. THE COURT: That would be under

section 109 for 10 years, and I make that on the exercise control. MS. THOMPSON: Thank you. THE COURT: No firearms, ammunition, explosive devices or crossbows. That’s the sentence of the Court. Good luck, work hard. H.H.: Thank you. MR. HODSON: Thank you, Your Honour. MS. THOMPSON: And sorry, it was up in the air whether SOIRA would be available dependent upon whether Your Honour had found H.H. guilty as a youth or as an adult. Given that you’ve imposed an adult sentence, the Crown seeks a SOIRA order. THE COURT: It’s not mandatory in these circumstances? MS. THOMPSON: No, I don’t believe so.

THE COURT: I decline to make it. MS. THOMPSON: Thank you. COURTROOM CLERK: And, Your Honour, the one adult information for H.H. was fail to comply with order after remand. There are other charges left on that information. THE COURT: There were four counts, I believe, of those. COURTROOM CLERK: There was four. MS. THOMPSON: There were four counts and the Crown read in facts in relation to all four, but I believe H.H. entered a plea to one count only. THE COURT: Thank you. MS. THOMPSON: I’d ask that the remaining be marked withdrawn, please. COURTROOM CLERK: Thank you.

THE COURT: Okay, and the sentence on that is six months concurrent. Thank you. MS. THOMPSON: Thank you. THE COURT: Thank you. MR. HODSON: Thank you, Your Honour. ********** FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2)

I, Janice Montgomery, certify that this document is a true and accurate transcript of the recording of Regina v. H.H, a young person, in the Ontario Court of Justice, Youth Justice Court, held at Oshawa, Ontario on February 29, 2016, taken from Recording No. 2811-403-20160229-092901-Y-3-BLOCKM, which has been certified in Form 1.

August 22, 2018 _____________________________ ______________________________ DATE JANICE MONTGOMERY Certified Court Reporter Transcript Ordered: August 20, 2018 Transcript Completed: March 2, 2016 Ordering Party Notified: August 22, 2018 Janice Montgomery, CCR, ACT Certified Court Reporter, CRAO Authorized Court Transcriptionist jmontgomery7703@rogers.com PLEASE NOTE: Any copies of this transcript are unauthorized and are in direct violation of Ontario Regulation 94/14 , Courts of Justice Act , April 19, 2014. If additional copies are required, please contact the above-noted reporter.

This transcript is a true certified copy bearing the original signature in blue ink.