R. v. C.Z., 2021 BCPC 25

Citation: R. v. C.Z. 2021 BCPC 25 Date: 20210218 File No: 968-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act, SC 2002, c 1, REGINA v. C.Z. PUBLICATION BAN YOUTH MATTER - RESTRICTION ON ACCESS ss. 110 , 111 , and 118 of the Youth Criminal Justice Act ss. 486.4(1) and 486.4(2.2) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: A. Reed Counsel for the Defendant: C. Hutchinson Place of Hearing: [Omitted for publication] , B.C.

Date of Hearing: January 27, 2021Date of Judgment: February 18, 2021 INTRODUCTION [1] The Supreme Court of Canada recognizes that sentencing any offender is a difficult art involving innumerable factors.Sentencing young offenders is even more daunting because typically they are adolescents in the throes of significant and rapidphysiological, psychological, and emotional development. Hence, at sentencing, the court is often dealing with an individual who ismarkedly changed from the one who committed the offence.

Such is the case before me. [2] On August 12, 2020, after a six-day trial, I convicted C.Z. of sexually assaulting S.F. The circumstances of the offence areparticularized in my decision of August 12, 2020, indexed as R. v. C.Z., 2020 BCPC 147 . In a nutshell, in the early hours ofOctober 14, 2018, in the aftermath of a house party, C.Z., then 16 years old, sexually assaulted S.F. in various highly intrusive ways. S.F.was 14, no more than a mere acquaintance, exhausted, and struggling to regain her sobriety. C.Z. ignored S.F.’s demands to stop andoverwhelmed her attempts to resist.

Ultimately, S.F. was able to fend him off and C.Z. gave up trying to have sex with her. The followingday, S.F. disclosed to her friends, her mother, and the police that C.Z. had forced sex on her. Despite his persistent denials, C.Z. wasarrested, charged and convicted of the offence. [3] C.Z., now 18 years old, is before me for sentencing under the Youth Criminal Justice Act. Within the past five months, C.Z. hasadmitted his wrongdoing to the forensic psychologist and apologized to the Court, which some may view as

an act of remorse. C.Z. is anIndigenous first time young offender who suffers from a congeries of neurodevelopmental, physical, and psychological disorders. He hada chaotic early childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse,and transgenerational trauma. Despite these disadvantages, C.Z. has not succumbed to substance misuse or other criminal behaviour. [4] Sexual assaults of this magnitude are violent offences that ordinarily attract a custodial sentence, even for young first timeoffenders.

The Crown and Defence jointly recommend a sentence of 24 months’ probation. For the reasons set out below, I accept thereare sufficient exceptional circumstances in play to justify imposing a non-custodial sentence. SUBMISSIONS AND EXHIBITS [5] This matter came before me for sentencing in [omitted for publication] Provincial Court, on January 27, 2021. I heardsubmissions from the Crown and Defence and an apology from C.Z.

I received into evidence the following exhibits: Exhibit 1: The Gladue Pre-Sentence Report dated October 30, 2020, authored by Youth Probation Officer Theresa Forsythe; Exhibit 2: The Psychosocial report dated October 21, 2020, authored by Amrit Toor, Youth Criminal Justice Counsellor, for YouthForensic Psychiatric Services; and Exhibit 3: The Psychological Assessment Services dated October 19, 2020, authored by Dr. Noa Schwartz, a Registered Psychologistof Youth Forensic Psychiatric Services.

SENTENCING YOUNG PERSONS UNDER THE YCJA Objectives Of The YCJA [6] C.Z. was 16 years old when he committed the offence for which he is being sentenced and thus is a “young person” as definedby the Youth Criminal Justice Act, SC 2002, c 1, (the “YCJA”). The YCJA sets out a sentencing regime completely different from thatestablished under the Criminal Code. The predominant principles of sentencing and the available sentence ranges are dramaticallydifferent for youths and adults.

With the enactment of the YCJA, Parliament created a separate criminal justice system for young personsin recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system: seeR. v. D.B., 2008 SCC 25, para. 41; R. v.

S.J.L., 2009 SCC 14 . [7] The YCJA holds that the youth criminal justice system “is intended to protect the public by holding young persons accountablethrough measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person” by“promoting the rehabilitation and reintegration of young persons who have committed offences”: YCJA, s. 3(1)(

a) Thus the appropriatesentencing principles under the YCJA are accountability, proportionality, rehabilitation and reintegration: YCJA, s. 3(1)(b). [8] Section 3(1)(

c) of the YCJA states: (

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, involvethe 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 youngpersons with special requirements . . .

Purpose Of Sentencing Under The YCJA [9] Section 38(1) of the YCJA states the purpose of youth sentences is to hold young persons accountable through just sanctions that

ensure meaningful consequences for them and promote their rehabilitation and reintegration into society, thereby contributing to thelong-term protection of the public. Principles Of YCJA Sentencing [10] Section 38(2) of the YCJA specifies that: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who hasbeen 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 offencecommitted 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 thatoffence; (

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; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; 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. [11] The YCJA is clear that rehabilitative measures intended to address problems that appear to have caused the young person tocommit an offence must not result in a sentence that is disproportionate to the seriousness of the offence committed. The Supreme Courtof Canada in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 , commented the protection of the public is a long-term outcome of a of asuccessful youth sentence.

Factors To Be Considered [12] Section 38(3) of the YCJA requires a youth court judge to consider a number of specific factors in in determining an appropriatesentence, including: 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 purposeand principles set out in this section.

Sentencing Options [13] Section 42(2) of the YCJA provides the court with a list of sentencing options in escalating intrusiveness. These options rangefrom a reprimand in the least serious cases to an intensive rehabilitative custody and supervision in the most serious violent offences. Theoptions are not mutually exclusive. A court can impose any one or more of the sentences that are not inconsistent with one another:s. 42(2).

Section 42(14) of the YCJA provides that for most offences, the maximum combined duration of sentences is two years (unlessit is one of the serious offences for which an adult could receive a sentence of life imprisonment, in which case the maximum custodialsentence in youth justice court is three years). Custodial Sentences For Young Offenders [14] The

preamble to the YCJA expresses the need to discourage custody and supervision as a criminal penalty for young persons.

Although, s. 39(1) limits the use of custodial sentences, they are available where the young person has committed a violent offence. A violent offence as defined in s. 2 of the YCJA includes one that causes bodily harm. Proportionality: C.Z.’s Personal History Including Indigenous Heritage [ 15 ] C.Z. is 18 years old.

His circumstances and antecedents are set out in detail in the three presentence reports marked Exhibits 1, 2, and 3 in this sentencing hearing. [ 16 ] C.Z. is a member of the [omitted for publication] First Nation, whose members are scattered among a number of small reserve communities on [omitted for publication] Lake.

In 1952 the [omitted for publication] people were forcibly resettled when the Provincial Government flooded and submerged their traditional territories to create the Nechako Reservoir which supplies water to the Kenny hydroelectric dam, which in turns supplies electricity to what is now Rio Tinto Alcan’s aluminum smelter in Kitimat. The floodwaters permanently inundated [omitted for publication] lands, villages, spiritual sites and burial grounds.

The negative social and environmental impact of the [omitted for publication] First Nation’s dislocation and dispossession resonates to this day. [ 17 ] C.Z.’s mother, V.C., is a member of the [omitted for publication] Clan of the [omitted for publication] First Nation. His father, C.K., is Caucasian and from Alberta. C.Z.’s grandmother, J.W., grew up in foster homes; was sent to residential school, was sexually abused at an early age by an uncle, and experienced the violent or premature death of many loved ones. J.W. struggles with anger, alcoholism, and the legacy of childhood trauma.

C.Z.’s mother also experienced a troubled childhood, marked by sexual abuse, physical abuse, and the loss of family members. She too succumbed to alcoholism and at various times disappeared into the tragedy that is the Vancouver downtown eastside. [ 18 ] C.Z. was born in [northern British Columbia] on [omitted for publication]. In the first six years of his life, C.Z. moved with his parents from [northern British Columbia] to his father’s family farm in [rural] Alberta, then back again. When C.Z. was six, V.C. and C.K.’s relationship disintegrated and C.Z.’s life completely destabilized.

For six or seven years C.Z.’s father disappeared entirely from his life. C.Z. remained with his mother, except when she was on a binge, at which time he lived with his maternal grandparents, J.W. and G.W. Although strict, J.W. was neither angered by nor abusive to C.Z. G.W. cared dearly for C.Z., teaching him various traditional Indigenous skills such as hunting for moose and beaver, fishing, berry picking, and preparing fish for a potlatch. [ 19 ] While in his mother’s care, C.Z. was exposed to family violence, residential instability, parental substance misuse, poverty, neglect, and transgenerational trauma.

C.Z. says that when angry, his mother yelled at him, belittled him, punched him, and beat him. On one occasion, she threw a knife at him and on another, broke a broom over his back. At age five, while in his mother’s care, C.Z. was physically and sexually assaulted by his mother’s brother. C.Z. told Youth Worker Forsythe he does not talk about the abuse he endured in his mother’s care, because she would simply deny it. C.Z. said his family “engages in a lot of hiding and lying about what they have done.” [ 20 ] C.Z. suffers from a congeries of neurodevelopmental, physical and psychological disorders, including: (

a) Attention Deficit Hyperactivity Disorder (“ADHD”); (

b) Fetal Alcohol Spectrum Disorder (“FASD”); (

c) Anxiety Disorder NOS (“n ot otherwise specified” - panic attacks), (

d) an intellectual disability; (

e) significant difficulties with fine motor, visual motor integration, and manual dexterity skills; and (

e) Irritable Bowel Syndrome. Not surprisingly, for C.Z., school was an ordeal. In Grade 3 he was placed on an Individual Education Plan (IEP) to address his academic difficulties. In Grade 4, he was placed on a Behavioural Intervention Plan (BIP) for impulse control and anger management. When he was 12 years old, C.Z. was diagnosed with Complex Developmental Behavioural Conditions. C.Z. was bullied and isolated in elementary school and reacted with anger and aggression. His academic difficulties were exacerbated by poor attendance and multiple suspensions. [ 21 ] In their May 21, 2014, Multidisciplinary Assessment

Summary Report the Northern Health Assessment Network (NHAN) wrote: It was noted that C.Z. required significant and consistent supervision, guidance, and supports for his daily functioning as he demonstrated significant difficulties on measures of adaptive functioning . . . consistent with a Mild Intellectual Disability.

He also demonstrated significant difficulties with most areas of executive functioning including: difficulties inhibiting impulses; thinking flexibly; holding and manipulating information mentally; getting started on tasks on his own; directing himself, completing tasks independently; planning, organizing, and self-monitoring behaviours.

He was found to have significant difficulties with inattention, distractibility, impulsivity and hyperactivity confirming a previous diagnosis of ADHD Combined Type for which he previously took medication but discontinued due to side effects (e.g., heightened emotionality and poor sleep). [ 22 ] C.Z. described to Dr. Schwartz how his disorders manifest themselves: I can’t think properly. I can't think critically. I can't remember how to do a formula… I got help, they tried, but I just really didn't listen. I still have those difficulties. Not as bad. I still struggle with easy math.

It is really hard to learn for me. It is weird to sit down in front of a piece of paper. My mind is blank and can't really do anything. I am really good at sports. I am a fast thinker. I work really good with my hands. My mind is weak . . . The school recommended I see a doctor for ADHD. Behavior difficulties, yes. I got into fights. I could not keep my hands to myself. I didn't listen. [ 23 ] In recent years, C.Z. has manifested signs of mental health distress, including low self-esteem, anxiety, self-harm, and suicidal ideations. [ 24 ] For a while, C.Z.’s social life improved in high school.

This came to a cataclysmic end with S.F.’s sexual assault allegations. As the result of his bail conditions, C.Z. was forced to leave the [omitted for publication] Secondary School. For a while he attended the [omitted for publication] Learning Centre (the “Storefront” alternative school), but ultimately lost interest and left school in Grade 11. Although he does not enjoy school, C.Z. accepts he has to complete Grade 12 and graduate. Once this sentencing hearing is complete, C.Z. intends to finish his schooling. [ 25 ] After a 12-year tumultuous relationship, V.C. and E.T. separated.

Currently, C.Z. resides with his stepfather (E.T.) and his three younger maternal half-sisters in the family home. C.Z. has a wholesome relationship with E.T., whom he views as a hard worker, good

provider and positive role model. E.T. is a member of the [omitted for publication] First Nation and has passed on to C.Z. traditionalknowledge he learned from his father. V.C. now lives elsewhere with another family member. In the last year she has achieved sobrietyand has become a supportive presence in C.Z.’s life. C.Z. has also re-established a close and healthy relationship with his biologicalfather who is a red seal mechanic, farmer, and fisher.

C.Z. too has shown much aptitude and interest in mechanics, and is considering itas a vocation. [26] Since he was 15 years old (in 2017), C.Z. has worked sporadically for the [omitted for publication] Band office, cutting grass,taking out garbage and cleaning up the yard. In 2019, C.Z. worked at the [omitted for publication] Cultural Camp as a labourer. In 2020,he worked 25 hours per week building a traditional pit house at [a cultural] healing centre. He bought fishing gear and a gym pass withhis earnings. When not working, C.Z. spends time at home or at the gym working out or in the community playing rugby.

I gather C.Z. isa solitary young man who spends much of his leisure time at home and much of his time at home listening to music or playing videogames. I suspect the public opprobrium he experienced as a result of his charge and convictions had a role to play in C.Z.’s self-imposedisolation. Protection Of The Public And Risk Of Reoffending [27] Although C.Z. initially denied having sexually assaulted S.F., he eventually admitted his guilt to both Dr. Schwartz and theCourt. He told Dr. Schwartz that he couldn’t talk about the offence because he felt ashamed and mad at himself.

At his sentencing, hesaid he felt “terrible” for what he had done. [28] Dr. Schwartz’s risk assessment was limited by the dearth of empirically validated actuarial instruments available to accuratelyestimate the risk of adolescent sexual reoffending. [29] Dr. Schwartz opined that C.Z.’s psychological profile was similar to youths who experience symptoms consistent with exposureto trauma, peer rejection, and instability. In assessing C.Z.’s risk to the community, Dr.

Schwartz identified a number factors that mayheighten C.Z.’s risk of reoffending, including his sexualized aggression, sexual victimization, caregiver inconsistency, pervasive anger,school behaviour problems, conduct disorders, and a history of physical assault and exposure to family violence. Dr. Schwartz states: C.Z. appeared withdrawn from peer contact and socially isolated; he presented with cognitive distortions; there was little evidence ofvictim empathy; and he did not display understand[ing] of risk management strategies related to situations associated with hisoffending . . .

C.Z. demonstrated limited internal motivation for change. And, although he expressed guilt by a nod of the head andshame, he did not express remorse. Additional risk factors that were identified were: C.Z.'s over-involvement in video games; his limited participation in activities of dailyliving; his apparently limited independent living skills; his untreated self-described symptoms of depression and anxiety, his risk of self-harm; his untreated and self-described difficulties with attention, focusing, and organization; his inverted sleep

schedule and avoidancepatterns; his low self-esteem and sense of discouragement about his future; his anger and dependence on his mother; and limits of hisexecutive functioning. [30] Dr.

Schwartz also identified a number of protective factors in C.Z.’s life: . . . a desire and attempt to remain positive; strong language skills and friendly manner; interest in sports and maintaining a regularschedule attending the gym stating that going to the gym helped him to de-stress; his identification with his First Nations heritageincluding love of the outdoors, hunting, fishing, skidooing, accepting work from his band, and participating in a work program building a''pit house"; his limited use of substances; his compliance with his bail order; and his willingness to give counselling a try. [31] Dr.

Schwartz rated C.Z.'s risk of reoffending as falling in the low to moderate range at this time. This risk could be reduced ifC.Z. was able and willing to participate in treatment. Still, Dr.

Schwartz cautioned: Given the rapid developmental changes during adolescence, the potential for change in these risk factors, and that much of thesupporting research is based on follow-up data of less than three years, it is essential to note that this estimate of risk should be re-evaluated after a period of at most two years or following significant social, environmental, familial, sexual, affective, physical, orpsychological change. [32] Some of the treatment options Dr. Schwartz recommends for C.Z. include: (

a) youth sexual-offence counselling; (

b) culturallyappropriate trauma-informed sexual-offence specific counselling; (

c) engaging in pro-social recreational, educational, social, andvocational pursuits; (

d) a follow-up psychiatric and/or medical evaluation to treat C.Z.’s ADHD, mental health concerns, includingsymptoms of depression and anxiety, and monitor him for risk of self-harm; (

e) vocational skill development; and (

f) referral toCommunity Living British Columbia to determine his eligibility for support through Persons With a Disability. Parity In Sentencing [33] Sentencing a young person under the YCJA is context-specific: R. v. P.R., 2018 SKCA 27. It is a highly individualized processthat depends upon the offence, the circumstances of the offence, and the circumstances of the offender. Still, s. 38(2)(

b) of the YCJAdirects a court to consider parity with other sentences in the region. Sentences for sexual offences usually include a period of probation(s. 42(2)(

k) YCJA) with permissible conditions (s. 55(2) YCJA), including community service work (s. 42(2)(

i) YCJA) and a curfew .Often youth sentences for sexual offences include: (

a) where available, an intensive support and supervision program (s. 42(2)(

l) YCJA);and/or (

b) a custody and supervision order (s. 42(2)(

n) YCJA). Courts rarely impose an intensive rehabilitative custody sentence(s. 42(2)(

r) YCJA) except where the offence is an aggravated sexual assault. [34] Although the B.C. Court of Appeal in R. v. A.A., 2013 BCCA 202 , imposed a deferred custody and supervision orderunder s. 42(2)(

p) of the YCJA, many courts have ruled such an order is statute-barred for sexual offences by virtue of s. 42(5). Thissection precludes a deferred custody and supervision for an offence where a young person “causes or attempts to cause serious bodilyharm.” Sentencing judges often cite R. v. McCraw, (SCC) wherein the Supreme Court held that “serious bodily harm”

could include a psychological injury that interfered with the integrity, health, or well-being of a victim. (See: R. v. B.T.L., 2020 BCPC185, at paras.79; R. v. P.K.K., 2006 ABCA 1; R. v. AW, 2021 ABPC 14 , paras. 70-72; R. v. NAL, 2018 ABPC 211 ,R. v. AY, 2019 ABPC 325, R. v. JAH, 2016 MBCA 58; R. v. BS, 2017 MBCA 102; R. v. B.V., 2020 SKPC 45 R. v. P.I., 2018ONCJ 324 ; R. v.

S.G.F., 2007 BCPC 168 ). [35] I have set out below some of the sentences the courts imposed for sexual offences by a young offender against a young victim: a. conditional discharge with twelve months’ probation including community service work: R. v. M.M.O., 2017 BCPC 78;R. v. ETM, 2016 ABPC 43 ; b. probation: (i) 12 months: R. v. P.R., 2018 SKCA 27 ; R. v. P.M., (NL PC); (ii) 18 months: B.V.;and R. v. N.C., 2015 SKPC 79 ; (iii) 24 months: R. v. B.J.L., 2017 BCPC 64 ; AW; R. v. K.O., 2012 NLCA 55 ;R. v. JB, (NLPC); and R. v. J.S., 2019 ONCJ 873; (iv) 24 months including community service work: AY; R. v.

BDL,2013 SKQB 355 ; and R. v. R.J.D.B, 2015 YKTC 16; and (v) 36 months: R. v. CVS, 2010 BCPC 71 ; c. six months’ deferred custody and supervision followed by probation: (i) 9 months’ probation: R. v. DB, 2016 ABPC 23; (ii)12 months’ probation’ plus 100 hours community service work and a curfew: BS; (iii) 24 months’ probation: R. v. KS, 2016YKTC 23; d. six months’ deferred custody and supervision with a concurrent two-year intensive support and supervision program: R. v. A.A.,2013 BCCA 202 ; e. custody and supervision: (i) 34 days’ time served: R. v. SCL., 2014 BCCA 336 and R. v.

PEL, 2017 BCCA 215; and (ii) 6 weeks followed by two years’ probation including 100 hours of community work service: PI; f. three months’ custody and community supervision with 24 months’ intensive support and supervision program: BTL; g. five months’ custody and supervision followed by 12 months’ probation: BS; h. six months’ custody and supervision order followed by 12 months’ probation: R. v.

JK, 2011 NWTTC 11 ; i. six months’ custody and supervision followed by 12 months’ intensive support and supervision program: SGF; j. nine months’ custody (open) and supervision followed by 24 months’ intensive support and supervision program: R. v. SS,2010 BCPC 19 (sexual assault with a weapon); k. nine months’ custody and supervision followed by 18 months’ probation: R. v. JS, 2017 YKTC 23 ; l. twelve months’ custody (open) and supervision followed by: (i) 12 months’ probation: R. v. J.B., 2017 ONCJ 542 ;R. v. DT, 2017 ABPC 297 ; NAL, R. v. AK, 2019 ABPC 264 ; and (ii) 24 months’ probation: R. v.

JGHW, 2020 MBCA86 ; m. twelve months’ custody (closed) and supervision followed by 12 months’ probation: R. v. TB, 2013 ONCA 675 ;R. v. J.P.W., 2010 BCPC 36; R. v. PL, 2017 ABPC 198; R. v. MM, 2017 ABPC 268 ; n. fourteen months’ custody (closed) and supervision followed by 22 months’ probation: R. v. JMP, 2016 YKTC 24 ; o. fifteen months’ custody (open) and supervision followed by (i) 5 months’ probation: R. v. MA, 2020 SKPC 13 (sexualassault causing bodily harm); and (ii) 9 months’ probation: R. v. NE, 2015 ONCJ 767; p. eighteen months’ custody (open) and supervision: R. v.

RS, 2015 ONCJ 767; q. twenty-one months’ custody (open) and supervision followed by 3 months’ probation: R. v. CS, 2015 ONCJ 767; r. twenty-two months’ custody and supervision followed by a 2-month intensive support and supervision program: R. v. JL, 2013BCPC 347 (assault causing bodily harm); and s. eighteen months’ intensive rehabilitative custody followed by12 months’ conditional supervision in the community: R. v. DBV,2011 BCSC 1350 (aggravated assault). [36] The disparity in sentences arises from the disparity in the circumstances of the offence, the offender and the victim.

Broadlyspeaking, the authorities cited above address those factors identified in s. 38(3) of the YCJA and in Friesen. [37] The circumstances of the offence include: (

a) the offence charged (i.e. sexual assault, sexual interference, sexual assault causingbodily harm, sexual assault with a weapon, incest, or aggravated assault); (

b) the frequency of the sexual abuse; (

c) the degree ofphysical interference (YCJA, s. 38(3)(b)); (

d) the duration of the sexual abuse; (

e) whether it involved a breach of a position of trust; (f)the presence of coercion or grooming; (

g) the presence of gratuitous violence; and (

h) whether the sexual abuse occurred in the victim’shome. [38] The circumstances of the offender include: (

a) the offender’s age at the time of the offence; (

b) the offender’s age at sentencing;(

c) the offender’s participation in the offence (YCJA s. 38(3)(a)); (

d) whether the offender was in a position of trust vis-à-vis the victim;(

e) the offender’s physical, mental and emotional health; (

f) the offender’s previous findings of guilt (YCJA s. 38(3)(e)); (

g) whether theoffender was Indigenous or otherwise socially disadvantaged; (

h) the offender degree of consanguinity to the victim; (

i) the offender’sfamily and community support; (

j) the duration and conditions of the offender’s bail; (

k) the offender’s performance on bail; (

l) theoffender’s efforts at pre-sentence rehabilitation; (

m) the offender’s ongoing risk to the community; (

n) whether the offender pled guilty;

(

o) whether the offender expressed remorse; and (

p) the time the offender spent in pre-sentence custody (YCJA s. 38(3)(d)). [39] The circumstances of the victim include: (

a) the age of the victim; (

b) the number of victims; (

c) whether the victim wasIndigenous or an otherwise vulnerable person; (

d) the physical, psychological, emotional, and financial impact of the offence on thevictim (YCJA, s. 38(3)(b)); and (

e) the impact on the community. Circumstances Of The Offence [40] The offence for which C.Z. is before the court for sentencing is one which the courts often, but not always, imposes a custodialsentence. Although it involved only a single incident, C.Z.’s sexual assault on S.F. was prolonged. Although not vicious or lifethreatening, the assault was still violent.

C.Z. pinned S.F. down, tore off her clothing, and forcibly engaged in sexual touching, kissing,cunnilingus, digital and attempted penile penetration. [41] Absent are a number of aggravating factors often present in cases where the court has imposed a custodial youth sentence. Forexample: a. the assault did not occur in S.F.’s home where she was entitled to feel safe: R. v.

Anderson, 2015 MBCA 30 ; b. although she was still feeling the effects of her earlier intoxication, S.F. was neither sleeping nor unconscious at the time of theassault; c. the assault was not accompanied by other forms of gratuitous violence, such as punching, kicking or choking; and d. other than C.Z. threatening to tell S.F.’s boyfriend it was her fault if she were to tell anyone about the assault, C.Z. did notthreaten violence or engage in other forms of intimidation. [42] I am mindful the Supreme Court of Canada in Friesen cautions against establishing a hierarchy of physical acts for sexualoffences or treating penetration as the most egregious conduct.

Despite the absence of penetration in this case, I accept the assault washighly intrusive of S.F.’s physical, psychological, and sexual integrity. Circumstances Of The Offender [43] A fit sentence balances a number of factors personal to C.Z., many of which militate toward a non-custodial sentence. Theseinclude: a. Age at the time of the offence. Generally speaking, very young offenders are considered less morally blameworthy. C.Z. was16 at the time of the offence, which is not particularly “young” under the YCJA which sentences youth between the ages of 12 and 17; b. Age at the time of sentencing.

C.Z. was 18 at the time of sentencing. In the 28 months between the offence date andsentencing, C.Z. had matured and gained some insight into his behaviour; c. Participation. C.Z. was solely responsible for this offence. In other words, there is no suggestion the other young personspresent at the party in any way instigated, assisted in, or encouraged the offence; d. Position of trust: C.Z. was not in a position of trust vis-à-vis S.F., nor were they related. At best, they attended the same highschool and belonged to the same friend group; e.

Health: The offender’s physical, mental and emotional health is highly relevant in sentencing Friesen, para. 91. C.Z. suffersfrom a plethora of physical, mental, and emotional health issues; f. Previous findings of guilt: C.Z. is a first-time offender. He has no previous findings of guilt and there are no other outstandingmatters before the court. This, however, is not unusual as many offenders convicted of sexual offences under the YCJA are first timeoffenders; g. Indigenous heritage: C.Z. is an Indigenous youth with significant Gladue factors; h. Consanguinity: C.Z. was not related to S.F.; i.

Family and community support: C.Z. has the support of his parents and grandparents; j. Bail (duration and conditions): C.Z. was on bail since October 15, 2018. His original bail conditions forced him to withdrawfrom the [omitted for publication] Secondary School, where he was attending at the time; k. Bail (performance): C.Z. has been “respectful and compliant” with his bail conditions for over 28 months; l. Pre-sentence rehabilitation: Although his participation in counselling thus far has been mediocre at best, C.Z. has adopted arelatively prosocial and healthy lifestyle. Specifically: i.

C.Z. does not drink alcohol or consume street drugs; ii. C.Z. does work when it is available; iii. C.Z. understands the need to complete high school and has plans to do so once this sentencing process has completed; iv. Although somewhat socially isolated, C.Z. is engaged in sport, fitness training, hunting, and fishing;

v. C.Z. has a supportive family; and vi. C.Z. has indicated his willingness to engage in counselling; k. Ongoing risk to the community: Dr. Schwartz tentatively assessed C.Z.'s risk of re-offence as falling in the low to moderaterange at this time. This risk may be reduced if C.Z. participates in sexual-offence specific counselling, which C.Z. says he will do. I findC.Z. presents a low risk of reoffending generally or sexually. I reach this conclusion because despite his stressors and socialdisadvantage, C.Z. has not demonstrated any criminal behaviour other than that for which he is being sentenced; l.

Guilty plea: C.Z. was convicted after a trial, which is not aggravating but deprives him of the mitigating effect of a guilty plea; m. Remorse: On October 6, 2020, almost two years after the offence, C.Z. has admitted his guilt to the forensic psychiatrist. At hissentencing on January 27, 2021, C.Z. apologized to the court and acknowledged the harm done to S.F. I accept his late-bloomingexpression of remorse as genuine; and n. Pre-sentence custody: C.Z. has not spent any time in pre-sentence detention as a result of this offence.

He was arrested andreleased on a Promise of a Young Person to Appear and Undertaking to a Peace officer on October 15, 2018. Impact On The Victim And The Community [44] The impact on the victim takes into consideration a number of factors which, in this case, militate toward a custodial sentence.These include: a. The number of victims. S.F. was the only victim; b. The age of the victim. S.F. was 14 at time of the offence, and although young, was not as young as many of the childrenvictimized by young offenders.

A significant number of the cases referenced above involve victims who were prepubescent and theoffender’s younger siblings or relatives; c. Victim vulnerability. S.F. was a 14-year-old Indigenous female, who, when assaulted, was struggling to recover from theeffects of her recent intoxication; d. Victim Impact. Neither the Crown Counsel nor the Youth Worker were able to obtain a Victim Impact Statement. S.F. went tothe Crown office and tried but could not complete a statement. Nevertheless, I am satisfied the offence would be traumatizing to theyoung victim.

After the assault, S.F. was scared, upset, crying, shaking, and sought counselling. The harm caused to sexual assaultvictims is well-documented. Children who have been sexually abused can suffer physical, emotional and psychological harm which maylast a lifetime. At trial, I did not accept the bruises S.F. sustained were caused by the sexual assault. However, I do accept she was likelyemotionally harmed as a result of this offence, and that it was reasonably foreseeable, even to a 16-year-old boy with C.Z.’s cognitivelimitations; and e. Community impact.

The Court can consider the prevalence of sexual offences in the community when crafting a sentence:R. v. Dejaeger, 2018 NUCA 7 citing R. v. Lacasse, 2015 SCC 64 at para 87. I do not have any statistics before me on theincidents of sexual assaults in [omitted for publication]. Anecdotally, I can say it is an offence that is commonly prosecuted in allProvincial Courts in northern British Columbia. Collateral Consequences [45] The collateral consequences are not necessarily aggravating or mitigating factors as they do not relate to the gravity of theoffence or the level of responsibility of the offender: R. v.

Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. Nevertheless, they dospeak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal, oroccupational implications. C.Z. reported to the Youth Worker the impact of the offence on his life: C.Z. reported that he tries not to think about the offence as for two years it has killed him eternally, his name ruined, and he has acceptedthe position he is in. C.Z. has lost all his friends and people he does not know tell their kids to stay away from him.

The RCMP arrestedC.Z. in school and there were internet posts smearing his character, warning he was a rapist and to stay away from him. [46] There is no doubt persons charged with a criminal offences face serious social and personal consequences. They experience theloss of liberty, or stigmatization or ostracism in the community, as well as other social, psychological, and economic harms.

These arenot mitigating; however, in a small community, these factors, if prolonged and pervasive, may constitute hardships personal to theoffender which the Court ought to take into account when determining a proportionate sentence: R. v. TWS, 2018 ABQB 870 ,paras. 78-80. In R. v. Neilson, 2020 ABQB 556 , Justice K.M.

Eidsvik, held the court ought to consider the community stigma,ostracism, and physical violence the offender suffered as going to some length to satisfy the denunciation component of sentencing. [47] In this case, I consider as a collateral consequence the fact that C.Z. was forced to leave the [omitted for publication] SecondarySchool as the result of the October 15, 2018 Undertaking prohibiting him from going to S.F.’s “residence, school, place of work oranywhere she may be” without exception. There were no other public high schools comparable to [omitted for publication] SecondarySchool in the community.

I note Dr. Schwartz’s psychological assessment indicates C.Z.’s profile was that of a youth suffering from aprolonged sense of rejection from his peers and consequently experienced feelings of isolation, loneliness, and sadness. DISPOSITION [48] When imposing sentence upon a young offender, a youth court judge must be cognizance of the inherent differences betweenadults and young persons and the different approaches to sentencing adopted by the Criminal Code and the YCJA. There is apresumption of a diminished moral blameworthiness for young persons who commit crimes. Because he is young, I must consider the

long-term impact of any sentence I impose upon C.Z. The sentence I impose must facilitate C.Z.’s rehabilitation while at the same timehold him accountable for his actions. [49] The YCJA indicates that a sentencing judge “may” consider the sentencing principles of specific deterrence and denunciation.These principles militate toward a custodial sentence for sexual offences in order to reflect their seriousness and to hold the youthaccountable. Accountability, however, does not automatically invite a custodial sentence.

A youth can be held accountable through lessersanctions and the YCJA directs judges to use custodial sentences only when no other sentence is reasonable. In this case both the Crownand Defence urge the court to impose a non-custodial sentence of 24 months’ probation together with a DNA order. [50] Although the Crown and Defence advocate for the same sentence, this is not a joint submission as contemplated in R. v. Anthony-Cook, 2016 SCC 43. I found C.Z. guilty after a trial. There was no agreement as to sentence in exchange for a guilty plea.

Accordingly,the court is not required to defer to a joint recommendation: R. v. Dunkers, 2018 BCCA 363 . Nevertheless, post-trialnegotiations of counsel still assist the sentencing judge and save on judicial and court resources, and where appropriate, ought to berespected. [51] I appreciate and respect Crown and Defence’s thorough and thoughtful submissions on the law and facts in this matter. But fortheir joint recommendation, I would have likely imposed a more intrusive sentence.

Nevertheless, the 24 months’ probation counselpropose is within the range of sentences imposed on youthful offenders convicted of sexual offences in comparable circumstances, andnot per se unfit. Accordingly, I will accept their recommendations and impose the sentence sought. SENTENCE [52] C.Z., on August 12, 2020, I found you guilty of sexually assaulting S.F., [omitted for publication] BC, on October 14, 2018. I amsentencing you to 24 months’ probation pursuant to s. 42(2)(

k) of the Youth Criminal Justice Act, on the following terms and conditions: a. You shall keep the peace and be of good behavior. b. You shall appear before the Youth Justice Court when required to do so by the court. c. You shall report by telephone (1-250-847-1227) to the Youth Worker no later than 3:00 pm tomorrow, February 19, 2021, atthe Youth Probation Office located at Ministry of Children and Family Development, 2 floor 3793 Alfred Avenue, Smithers, BC andafter that you shall report as and when directed by the Youth Worker. d.

You shall reside at a residence approved by the Youth Worker and you shall not change your residence at any time without firstobtaining the written consent of the Youth Worker. e. You shall obey all rules and regulations of your residence. f.

You shall have no contact or communication, directly or indirectly, with S.F. except as follows: i. with the advance written consent of the Youth Worker ; ii. through a third party approved in advance by the Youth Worker; iii. through legal counsel; iv. while in attendance at court; v. incidental contact while at the school in which both of you are enrolled; and vi. incidental contact while in the course of your employment. g. You shall not attend at, or be within 10 meters of any place which you know to be the residence of S.F. except while on ahighway in a moving motor vehicle in transit to somewhere else. h.

You shall not possess any weapon as defined in

Section 2 of the Criminal Code, except while engaged in a lawful hunt withinyour traditional Indigenous territories. i. You shall: attend school regularly and not be absent except in accordance with a medical certificate or the advance writtenconsent of the Youth Worker, or alternatively make reasonable efforts to seek and maintain employment approved by the Youth Worker.If on any occasion that you report to the Youth Worker you are not actually employed you shall provide the Youth Worker with a reportdescribing the efforts you have made to find employment since your last report.

Such report may be verbal or written at the discretion ofthe Youth Worker. j. You shall attend, participate in and successfully complete any assessment, counseling or program as directed by the YouthWorker.

Without limiting the general nature of this condition, such assessment, counseling, or program may include and relate to: i. sexual offence prevention; ii. psychiatric and psychological health; iii. full-time attendance program for sex offenders; and iv. such full-time attendance program as may be directed by the Youth Worker and you shall comply with all rules and regulationsof any such assessment, counseling, or program.

k. You shall attend, participate in, and successfully complete a full time attendance program as and when directed by the Youth Worker. While you are in attendance at this program, you shall comply with all the rules and regulations of the program to the satisfaction of the Youth Worker and the Program Manager. l. Under the direction and supervision of the Youth Worker you shall successfully complete 40 hours of community work, i. which shall be completed no later than February 1, 2022; and ii. which may be paid hours as part of your employment with the [omitted for publication].

Ancillary Orders [ 53 ] As part of your sentence, I also make the following ancillary orders: a. Pursuant to s. 487.051(1) of the Criminal Code I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from C.Z.; and, b.

Pursuant to s. 487.051(4) of the Criminal Code I further make an order in Form 5.041 that you shall attend at the RCMP Detachment in [omitted for publication] B.C., on or before April 30, 2021, during regular business hours, and submit to the taking of the samples. [ 54 ] Pursuant to s. 119(1)(s)(ii) of the YCJA, I order that a copy of the reports marked Exhibits 1, 2, and 3 in this sentencing hearing together with my August 12, 2020, Reasons for Judgment and these Reasons for Sentence be released to the Youth Worker for case management purposes. ______________________________ The Honourable Judge J.T.

Doulis Provincial Court of British Columbia