R v JAH, 2016 MBCA 58

Citation: R v JAH, 2016 MBCA 58 Date: 20160602 Docket: AY15-30-08448 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) C. R. Savage ) for the Appellant Appellant ) ) B. F. Bonney and ) A. S. Grewal - and - ) for the Respondent ) J. A.

H. ) Appeal heard: ) March 14, 2016 (Young Person) Respondent ) ) Judgment delivered: ) June 2, 2016 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)). NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify any child victim or child witness that is connected with an offence committed by a young person that is being dealt with under the Youth Criminal Justice Act (see section 111(1)).

CHARTIER CJM and MONNIN JA Introduction and Issues [ 1 ] The Crown appeals the 6-month deferred custody and 30-month supervised probation sentence given to the respondent after he pled guilty to several offences involving forcible sodomy and/or sexual intercourse with a number of younger children. The Youth Criminal Justice Act (the YCJA ) precludes the imposition of a deferred custody and supervision order (a DCSO) for a young person found guilty of an offence which causes “serious bodily harm” (see section 42(5) of the YCJA ).

The sentencing judge found that, because the Crown had not called any evidence to establish serious bodily harm, it was open to her to impose the DCSO. [ 2 ] The facts are not in dispute. The respondent pled guilty to the offences. The principal issue on this appeal can be framed as follows: can it be inferred that offences of sexual assault involving acts of forced sexual intercourse or sodomy, by their very nature, cause serious bodily harm to the victim, thereby making a DCSO an unavailable sentencing option, or is the Crown required to call evidence to establish that the victims suffered such harm?

For the reasons that follow, we have no trouble concluding that serious bodily harm can be inferred. The Facts [ 3 ] The facts are particularly egregious. The respondent committed repeated major sexual assaults on 5 young children. The respondent knew the victims as they were his neighbour, cousin, nephew and nieces. The number of incidents totals more than 2 dozen and spans a 30-month period. They involve 5 sets of sexual assault charges and 2 breach charges. They can be summed up as follows:

1) Sexual Assault on his neighbour MS: From January 1, 2011 to July 7, 2012, the respondent sodomized this young boy on about 13 separate occasions. On one occasion, MS was forced to lick the respondent’s penis. The respondent was 13 to 14 years old at the time of these incidents; MS was between 7 and 8 years old.

What is even more troubling is that 2 days prior to the last incident, on July 5, 2012, the respondent had been placed on probation for an assault offence with sexual connotations against his cousin EO (see No. 2 below). 2) Sexual Assault on his cousin EO: From May 1, 2012 to July 22, 2013, the respondent had sexual intercourse and/or sodomized this young girl on 6 separate occasions. The respondent was 14 to 15 years old at the time of these incidents; EO was 8. EO’s siblings were sometimes present, and witnessed some of what transpired.

For most of this timeframe, the respondent was on probation resulting from a July 5, 2012 sentence for an assault with sexual connotations against EO. The respondent was ordered to follow sex offender counselling and not to have any contact with EO or any of her siblings. The respondent was released, with the consent of the Crown, to reside at Edgewood, a residential treatment facility for sex offenders.

While at that facility, the respondent disclosed 3 more victims. 3) Sexual Assault on his niece RH1: From May 1, 2012 to June 30, 2013, the respondent sexually assaulted her by fondling her genitals, by having her perform oral sex on him, by digitally penetrating her anus and vagina and by sodomizing her. There were about 7 to 10 such incidents.

The respondent was 14 to 15 years old at the time of these incidents; RH1 was between 7 and 8 years old. 4) Sexual Assault on his nephew RH2: From May 1, 2012 to June 30, 2013, the respondent sexually assaulted him by fondling his genitals, by having him perform oral sex, by digitally penetrating his anus and by sodomizing him. This happened on multiple occasions, only stopping when RH2 became strong enough to fend him off.

The respondent was 14 to 15 years old at the time of these incidents; RH2 was 10. 5) Sexual Assault on his niece AM: From January 1, 2012 to December 31, 2012, the respondent sexually assaulted her on 2 different occasions by digitally penetrating her vagina and by partially inserting his penis into her vagina until she said “ow.” The respondent was 13 to 14 years old at the time of these incidents; AM was 12 years old. 6) Failure to Comply with Probation Order: As mentioned at No. 1 above, the respondent had been placed on probation on July 5, 2012, for an assault offence with sexual connotations.

Two days after being sentenced for this offence, and while on probation to keep the peace and be of good behaviour, he committed sodomy against MS. 7) Failure to Comply with Probation Order: As mentioned at No. 2 above, the respondent had been placed on probation on July 5, 2012, and ordered not to have any contact with EO or any of her siblings. From July 15, 2012 to July 22, 2012, the respondent had repeated contact with TO, a sibling of EO. [ 4 ] Two reports were filed at the sentencing hearing. The first report was a pre-sentence report (PSR).

It indicated that the victim MS was “currently in permanent care and has experienced anxiety related issues requiring long term care and therapy.” The report also indicated that EO was “involved in therapy and currently supported by Protection Workers.” Attempts to contact the other 3 victims’ parents proved unsuccessful. [ 5 ] The PSR stated that the respondent was not able to identify any friends.

It also reported that he had, in essence, “offended on every child that visited his home and used luring, coercion, in some offences force to sexually victimize his victims.” In regard to victim empathy, the respondent could not share how his actions would have affected the victims or their families. The PSR also included troubling comments made by the respondent, such as: - that he has a “narcissistic” personality in the context of feeling he is “better than everybody else”; - that he chose his victims because he was “stronger than them”; - “I could do what I want to do . . .. I controlled my victims.

That gave me power and ability to control someone.” [ 6 ] The second report was a forensic assessment report (FAR). It noted that the respondent “did not appear to fully take responsibility for his actions nor did he offer spontaneous comments suggesting remorse for the victims.” The report also stated that the

respondent had “little victim empathy despite nearly a year worth of treatment.” The FAR noted that the respondent was assessed as a high risk to reoffend.

In the conclusion, it was reported that: In addition, his multiple offenses over the years involving various victims, the intrusive nature of his offenses, the use of force during some offenses, the lack of discrimination in victims (e.g. male and female victims), his limited inhibition and the use of luring and threats during some offenses are of significant concern and increase his risk of future reoffending. [ 7 ] In addition, 2 victim impact statements were filed—one by EO’s mother, the other by her grandmother. EO’s mother wrote about EO: She now cries at almost anything.

She struggles to tell us what is truly bothering her. Has fits of rage, and anger, then simply loses it and cries until she can no longer cry . . . We have had [EO] in counselling. And [EO] will be returning to counselling in the very near future as it is evident she is nowhere past the abuse that she endured. . . . [EO] struggles to maintain friends. [EO] now carries guilt with her daily. A guilt that I simply cannot comprehend. [EO] feels it is her fault that this person that raped her over and over again is gone away. She feels that she must have done something wrong. She even asks why he had to go away.

She tells us she is sorry for what happened and sorry that he had to get locked up. She can’t comprehend that what [the respondent] did to her was NOT her fault. The Decision of the Sentencing Judge [ 8 ] The sentencing judge noted that she did not need to have victim impact statements to recognize that each of the 5 children “sustained irreparable and long term damage” and that “the victim impact is huge.” She recognized “the physical trauma and pain that each surely has suffered”.

The sentencing judge also acknowledged that the “sexual assaults [were] violent offences” and that, had the respondent been an adult, he “would likely be looking at a lengthy sentence in a penitentiary.” [ 9 ] The sentencing judge determined that a custodial sentence was necessary, given the seriousness of the offences.

She also noted that the least restrictive custodial sentence available is a DCSO, stating that: Anything short of some sort of a custodial sentence would not be proportionate to the seriousness of the offences [the respondent] committed and could not achieve the principles of sentencing set out in Section 38(2)(

c) and Sections 3 and 38 of the [ YCJA ]. Section 38(2)(

e) requires the sentence to be the least restrictive sentence that is capable of achieving the accountability, keeping in mind rehabilitation and protection of the public. Deferred custody is the least restrictive of the available custodial sentences so that requires consideration. [ 10 ] The sentencing judge then held that the Crown was required to call evidence for the separate purpose of establishing “serious bodily harm” and, since that had not been done in this case, the DCSO was still an available sentencing option.

She stated: Defence counsel agree the sexual assaults were violent and that the gateway to custody is open, which is, in essence, an admission the actions caused bodily harm, but there was no agreement by defence counsel that there was serious bodily harm caused or attempted to be caused. Crown counsel did not argue that serious bodily harm was caused or attempt to be caused nor call any evidence to establish serious bodily harm so as to preclude a consideration of deferred custody .

Accordingly, the court is of the view that an order of deferred custody and supervision is a sentence that may be properly considered by the court and is not precluded by Section 42(5). [emphasis added] [ 11 ] The sentencing judge noted 3 provisions in the YCJA which limit the duration of certain dispositions for these offences —that deferred custody is limited to a maximum of 6 months (see section 42(2)(p)); that any sanction imposed for the same offence cannot exceed 2 years (see section 42(14)); and that the continuous combined duration for sentences imposed at the same time is capped to a maximum of 3 years (see section 42(15)).

After taking into account that the respondent had already spent 3 months in pre-sentence custody, as well as 20 months in a residential sex offender treatment program, the sentencing judge imposed a continuous combined sentence of 6 months’ deferred custody, followed by 30 months of supervised probation. A DNA order and a 2-year weapons prohibition were also imposed. Analysis Impact of the Amendment to the Youth Criminal Justice Act [ 12 ] Prior to dealing with the principal issue, it is necessary to determine the effect of a certain amendment.

On October 23, 2012, the YCJA was amended by the Safe Streets and Communities Act , SC 2012, c 1, assented to March 13, 2012. This amendment is relevant to this appeal for 2 reasons. First, the amendment relates in part to section 42(5) of the YCJA and, second, the amendment may not impact all offences in the same manner, since some of the incidents of sexual assault that are included in the offences occurred before and some occurred after October 23, 2012. No mention was made of this amendment at the sentencing hearing.

[ 13 ] At this point, it would be helpful to set forth the relevant provisions of the YCJA both pre-amendment and post- amendment: Pre-amendment

Definitions 2(1) . . . serious violent offence means an offence in the commission of which a young person causes or attempts to cause serious bodily harm. Deferred custody and supervision order 42(5) The court may make a deferred custody and supervision order under paragraph (2)(

p) if (

a) the young person is found guilty of an offence that is not a serious violent offence; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. Determination by court 42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly. Post-amendment

Definitions 2(1) . . . serious violent offence means an offence under one of the following provisions of the Criminal Code : (

a) section 231 or 235 (first degree murder or second degree murder); (

b) section 239 (attempt to commit murder); (

c) section 232, 234 or 236 (manslaughter); or (

d) section 273 (aggravated sexual assault). Deferred custody and supervision order 42(5) The court may make a deferred custody and supervision order under paragraph (2)(

p) if (

a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and

(

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. [14] Prior to the amendment, section 42(5) precluded the imposition of a DCSO when the young person was found guilty ofa “serious violent offence” (SVO). An SVO was defined under

section 2 of the YCJA as “an offence in the commission of which a youngperson causes or attempts to cause serious bodily harm.” In order to remove the DCSO as a sentencing option, section 42(9) required theCrown to seek and obtain from the youth court a designation that the offence in question was an SVO. [15] The 2012 amendment did not significantly alter section 42(5). The term “serious violent offence” found in section 42(5)was simply replaced by the definition of SVO that was in the pre-amendment YCJA. However, the amendment did cause section 42(9)to be repealed.

As a result, the Crown no longer had an obligation to formally apply to the youth court for an order preventing themaking of a DCSO. As stated by Nicholas Bala & Sanjeev Anand, Youth Criminal Justice Law, 3rd ed (Toronto: Irwin Law, 2012) (at p594): The amended section 42(5)(

a) precludes use of a DCSO for a young person found guilty of an offence in which the youth “causes orattempts to cause serious bodily harm.” Thus, it was possible for a youth court to impose a DCSO even though the situation might havebeen characterized as one involving serious violence, if the Crown failed to actually make an application for a “serious violent offender: determination.” The 2012 amendment, however, makes clear that if an offence involves serious bodily harm, a DCSO cannot beimposed: no special Crown application or judicial designation is required. [16] As indicated above, since some of the offences span the date when the amendment came into force, it is necessary toreview the new legislation to see whether the amendment applies to all, any or some of the offences.

The key provision is

section 195 ofthe Safe Streets and Communities Act, which states the following: Offences committed before this

section in force 195. Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respectof which no proceedings were commenced before that coming into force shall be dealt with under the [YCJA] as amended by this Part asif the offence occurred after that coming into force, except that (

a) the definition violent offence in subsection 2(1) of the [YCJA], as enacted by subsection 167(3), does not apply in respect of theoffence; (b) paragraph 3(1)(

a) of that Act, as enacted by subsection 168(1), does not apply in respect of the offence; (c) paragraph 38(2)(

f) of that Act, as enacted by

section 172, does not apply in respect of the offence; (d) paragraph 39(1)(

c) of that Act, as enacted by

section 173, does not apply in respect of the offence; and (

e) section 75 of that Act, as enacted by

section 185, does not apply in respect of the offence. [emphasis added] [17] The effect of

section 195 is that the new legislation applies only to proceedings which were commenced after October23, 2012. A review of the record shows that all of the “proceedings” except the one involving MS were commenced after October 23,2012. As a result, the Crown requirement to obtain an SVO designation from the youth court was only in place for the sexual assaultagainst MS.

The Crown had no such obligation with respect to the other four sexual assaults charges. [18] While the amendment simplifies part of the sentencing process by removing cumbersome procedures on the Crown,they do not significantly change the substance of the law. The new section 42(5) remains clear. A youth court must be satisfied that theyoung person caused or attempted to cause serious bodily harm before it is precluded from imposing a DCSO.

If the youth court is notsatisfied, a DCSO is an available sentencing option, should it want to use it. [19] In the case at bar, the Crown did not give the notice that was required under the old legislation with respect to theoffence involving MS. The effect of this procedural defect is that, while the sentencing judge did not have to impose the DCSO, it wasan available sentencing option for the sexual assault charge against MS. However, and as will be seen, the amendment will have nobearing on the result of this appeal.

Did the Crown establish that the sexual assaults caused serious bodily harm? [20] The Supreme Court of Canada, in R v CD; R v CDK, 2005 SCC 78 at para 20, [2005] 3 SCR 668, adopted, for YCJApurposes, the definition of “serious bodily harm” set out in R v McCraw, (SCC), [1991] 3 SCR 72. In McCraw, “seriousbodily harm” was defined as meaning “any hurt or injury, whether physical or psychological, that interferes in a substantial way with thephysical or psychological integrity, health or well-being of the complainant” (at p 81).

[21] In her reasons, the sentencing judge found that “the victim impact [was] huge” and that she did not need victim impactstatements to recognize that each of the 5 children “sustained irreparable and long term damage.” In our view, these factual findingssatisfy the legal definition of serious bodily harm. It is difficult to reconcile how someone can sustain irreparable and long-term damagewithout interfering “in a substantial way with the physical or psychological integrity, health or well-being” of that person (McCraw at p81).

Consequently, the DCSO was not an available sentencing option for the offences that fell under the new legislation, and thesentencing judge erred by imposing an illegal sentence. [22] However, even if the sentencing judge had not made the above-mentioned findings, we are of the view that she erredwhen she stated that the Crown did not “call any evidence to establish serious bodily harm so as to preclude a consideration of deferredcustody.” The Crown had asked the sentencing judge to infer that the 5 child victims had suffered serious bodily harm.

It invited thesentencing judge to draw “the reasonable inference . . . that these types of violent acts are going to have huge emotional impacts” onyoung children and that “when you’re dealing with young people, the court should be inferring that this is violent, that there’s going tobe severe psychological damage that happens”. [23] The sentencing judge declined to draw the inference. She ruled that the Crown had not established that the respondenthad caused, or attempted to cause, serious bodily harm under section 42(5). She then proceeded to impose the DCSO.

Which raises thequestion: what other evidence was the sentencing judge expecting the Crown to call? [24] Violence and serious bodily harm are implicit in the facts to which the respondent pled guilty. As a result, theevidentiary basis for the serious bodily harm can simply be inferred by the facts that were before the Court. The respondent did notcontest that he had forced sexual intercourse or sodomy with his younger victims. As was stated by Cory J in McCraw, “Violence andthe threat of serious bodily harm are indeed the hallmarks of rape” (at p 84). [25] The same can be said of forced sodomy.

These acts, by their very nature, cause or attempt to cause serious bodily harmto the victim. The Saskatchewan Court of Appeal reached the same conclusion in R v VIC, 2005 SKCA 95, 269 SaskR 131. The facts inVIC are eerily similar to those in the case at hand, in that the 14 to 15-year-old respondent had repeatedly forced sexual intercourse onhis 5 to 6-year-old cousin. In that case, the sentencing judge failed to designate the sexual assault as an SVO, and sentenced him to a 6-month DCSO followed by 18 months of probation.

The appeal court, citing McCraw, noted the violence inherent in the act of forcedsexual assault. It concluded that, because “the offence was by its very nature a violent offence” (at para 15), the youth court wasprecluded from imposing a DCSO. It held that the DCSO was “an illegal sentence” (at para 16). [26] Moreover, certain facts need not be proven by the calling of evidence because they are sufficiently undeniable to noticejudicially (see R v Find, 2001 SCC 32 at para 48, [2001] 1 SCR 863).

In our view, it is beyond reasonable dispute that perpetrating majorsexual assaults against young children causes them to suffer serious bodily harm. It is therefore not necessary for the Crown to tendervictim impact statements from each of the 5 young victims, or to call them to the witness stand, or to call an expert to prove that the childsuffered serious physical or psychological harm.

This is also in line with the modern approach to the evidence of young victims offavoring procedures and practices which will reduce the “likelihood of inflicting further injury on a child as a result of involvement inthe criminal process” (see R v F (CC), (SCC), [1997] 3 SCR 1183 at paras 29, 41). [27] In the result, we are of the view that it can be inferred or presumed that forced anal and/or vaginal penile penetrationcommitted on young children causes or attempts to cause serious bodily harm on the victims.

In such circumstances, a youth court isprecluded from imposing a DCSO and that leaves, in practical terms, as the only realistic sentence, a custody and supervision order (seeR v KC, 2011 ONCA 257 at para 26, 276 OAC 267). Consequently, the combined sentence of 6 months of deferred custody and 30months of probation must be set aside.

The Fit and Appropriate Sentence [28] Due to our conclusion that the sentencing judge imposed a sentence that was not available to her under law, and sincethat error had an impact on the sentence she imposed, it is open to us to sentence the respondent as we see fit. [29] As we stated above, in light of the unavailability of a DCSO, the only realistic sentence in the circumstances wouldtypically be a custody and supervision order.

However, in the exceptional circumstances of this case brought about by the sentencingjudge’s initial decision to send the respondent to Edgewood, and for the reasons that follow, we would substitute the sentence imposedwith one similar to that imposed by the sentencing judge.

We would impose a combined sentence of 3 years’ supervised probation withthe same conditions as those imposed by the sentencing judge, thereby ensuring that the respondent maintains his participation in theEdgewood program under the direction of Macdonald Youth Services (MYS). [30] The facts surrounding the offences to which the respondent pled guilty are set out earlier in these reasons. They areextremely troubling and, at first blush, could lead one to the conclusion that a custodial sentence must be imposed.

Were it not for therespondent’s almost 30-month participation in the Edgewood program, and the fact that he has already served the deferred custodyportion of his sentence, that is the sentence that we would have considered to be fit. However, on further and considered reflection, anon-custodial sentence might be of greater benefit to the community at large and this respondent in particular. [31] It is important to recall that the offences occurred when the respondent was between 13 and 15 years of age.

Therespondent was originally charged with 2 counts of sexual assault and, when arrested, was detained in custody at the Manitoba YouthCentre for 3 months. He was released on bail, with the consent of the Crown, to MYS, specifically to the Edgewood sex offenderresidential program, and has been a participant in that program to this date. It is of further note that 5 months into that program, therespondent disclosed similar offending incidents against 3 further victims. These additional incidents occurred prior to his entering theEdgewood program.

When the respondent made these disclosures, he was aware of the fact that the program directors were duty boundto bring those facts to the attention of the authorities, and that the result would be a further 3 counts of sexual assault against him. [32] On October 9, 2014, the respondent entered guilty pleas to all charges. Sentencing submissions were heard on June 18,2015, and the sentencing judge delivered her reasons on July 14, 2015.

[ 33 ] At the sentencing hearing, the Crown, as it did before us, argued that the sentence to be imposed should be the maximum combined youth sentence available of 3 years’ custody and community supervision. [ 34 ] Counsel for the respondent argued in favour of the sentence ultimately imposed.

Before us, he argued that, if the deferred custody portion of the sentence were set aside, the sentence imposed should be one of supervised probation. [ 35 ] The reason for imposing the sentence, which is set out earlier in these reasons, cannot be fully understood without looking into what the Edgewood program is and what it has to offer. We do so now. [ 36 ] The program is under the auspices of MYS, a well-established and well-respected agency that provides a variety of services and programs for at-risk youths.

The Edgewood program was described in the following terms at the sentencing hearing in the evidence of Tricia Caruk, the respondent’s treatment worker at Edgewood. We quote at length from her evidence to ensure that the objectives of the program are well set out and understood: A . . . We’re very structured, so from the time that the boys wake up, and there are six boys, sometimes seven, their day is structured all the way up to bedtime. They’re supervised continuously. We aren’t a locked setting.

However, they’re all very aware that the second they hit the door we call the high risk sex offender unit and they pick them up. So they wake up, they have breakfast, they get ready for school. They’re driven to school. And during this whole time we openly talk about issues that are going on in the house, any behaviours, because they don’t have the opportunity to sexually offend within the program, there are other behaviours that present themselves, such as targeting, such as being aggressive.

So we deal with that and try to relate it to their offence cycle so they can begin to understand why they are doing what they’re doing and what they’re using to replace it. They go to school. They’re in a separate program at a high school that we’ve had set up for just about 20 years with teachers who are very aware, well aware what their behaviours are. They get picked up for lunch. They come home for lunch. They eat lunch, then they go back with staff. We drive them. Then they spend the afternoon in school. They come home after staff have picked them up.

They do their homework, and then they go into a treatment group, which can contain anything from psycho ed, which teaches them appropriate skills around sexuality, communication, forming relationships, to a peer counseling group which deals specifically with their offending behaviours. And if you would ask [the respondent], that is probably the hardest group for them because they’re expected to be open and honest and talk about some pretty tough things. They also have a group where they have just a house group and they talk about the issues that are in the house. They have supper.

Sometimes they have structured activity in which the staff take them to activity. Then they have some free time, which consists, basically, of them maybe getting to watch TV, depending on the day, and then they go to bed. So, it’s very routine. Q Okay. And what they’re allowed to watch on TV or access on the computer is restricted by your program; is that correct? A Absolutely. Computer, they have one computer that they are allowed to use for school work. It has no internet access. None of them are allowed internet access. They’re not allowed cell phones, they’re not allowed a telephone of any sort.

All their calls are monitored at the unit. TV programs, we have cable and everything is restricted, plus -- that’s to say that we block certain channels out completely, and it also depends on what comes up on the TV depends whether they get to watch it or not. Q Okay. So would be your position that this is a very difficult program for a youth to complete, it’s very restrictive? A Yeah.

I would say it’s very restrictive, and I think it’s, it’s tough, but I’ve seen the changes in the kids we’ve had go through it and done very well and are successful out in the community now, but it is, it’s a lot of work. [emphasis added] [ 37 ] And further: Q Moving forward from this point, what can Edgewood offer [the respondent] in terms of long-term treatment from this point on?

A From this point on, [the respondent] will continue the path he’s on. There’s no reason why he can’t. We’ve had several people in the past, boys, who have gone all the way up to level four, and it does take time. I know it sounds like level six and it sounds like, wow, he couldn’t have just been on level two when his pre-sentence report was done; however, most of the time to get to even level three takes two years plus.

And then we’ve had kids go up to that level and then be demoted back down, and generally going back up the second time is a little bit easier. [The respondent] just really needs to get a good grasp on his sexual offending cycle and that is a tough thing, because to do that there has to be a great amount of trust because he needs to be able to talk about his past in an open and honest manner, and that takes time, and that takes time with anybody I’ve worked with the entire time I’ve been there.

Q So in terms of [the respondent] being at a level one or a level two and slipping back down, that’s not shocking to you or -- A No. Q -- out of the ordinary in this program, that that’s where he’s sitting right now? A No, not in any way, shape or form. Until he begins to understand the behaviours that he does to replace the sexual offending within the unit, and that’s what dropped him down, he’s going to have a hard time moving forward. So that’s what we’re working on, working on breaking it down for him so that he can understand that.

So when he can start seeing that, then hopefully those behaviours diminish and then his risk level starts to lower us a bit; when he actually does get out, that [the respondent] won’t be a risk to anybody. Q You and I have spoken before on the two options of -- A Um-hum. Q -- putting [the respondent] in jail and warehousing him without treatment versus a treatment option. Can you speak to the court and provide the court some information on what we could expect in terms of [the respondent’s] risk level, looking at each option? A Yes, absolutely I can.

I think that given what he has done in the past, I think there’s absolutely risk levels on both incarceration, is basically housing him for that period of time. And I, and I get that people are looking at as a punitive consequence for the actions that he has done; however, he is going to go in there with knowledge of the program but he is going to be angry, he is going to learn probably more skills that are not good while he’s there because he’s going to be housed definitely with people who have done like crimes, because they’re not going to put him in with the general population.

So he will come out, he will come out either a better offender or, at the least, a very angry offender, which in both cases is not a good thing. The treatment option, him being at Edgewood, I think he is going to have ups and downs, absolutely. Are there days he’s angry? Yes. We’re there to address that. We’re also there to ensure that not only is he safe but the community is safe. That is our first and foremost prerogative. So he’s going to have struggles, there is going to be setbacks, there is going to be gains. Time; treatment is time.

It, for anybody who’s gone through any kind of treatment, time is always an issue. Q And while we say [the respondent] is at level one or two, he has never attempted to leave the program -- A No. Q -- where you had to call the police; he’s always remained there, even though it’s not a locked facility? A He --

Q He’s been engaged at some level? A Yeah. He has never attempted to leave, he has never even talked about leaving. He’s never threatened to hurt himself if we wouldn’t give in to something that he has requested. He, him being a flight risk has never been a worry for us. Q Okay. In your experience have you seen progress in [the respondent’s] thoughts and his attitudes towards his offending behaviour in the period of time that you’ve worked with him? A I believe that [the respondent] has definitely learned way more skills.

I think that he has got a good understanding of, of what he has done and the dynamics behind it. I think that the struggle that he has is the trust issue with talking about it in enough detail to get an understanding that he actually hits it on a feeling level, and that is not uncommon. [emphasis added] [ 38 ] It is also important to note that, at the time of sentencing, the respondent was one month shy of his 18th birthday and was a permanent ward of Child and Family Services (CFS).

The evidence before the sentencing judge was that, if a custodial sentence were imposed, in all likelihood the majority of that sentence would be served in an adult institution and, when released, CFS would no longer have any involvement with the respondent. Without any involvement with CFS, the respondent’s participation in the Edgewood program would be terminated.

However, if the respondent were spared incarceration, the respondent’s wardship with CFS could be extended to his 21st birthday, thereby permitting him to complete the Edgewood program. [ 39 ] In our view, before entering into the Edgewood program, the respondent was on the path of becoming a sexual deviant, if not a pedophile in the making. We are satisfied that the imposition of a custodial sentence, with the lack of programming in an adult institution, could have confirmed the path that the respondent was embarked upon.

Imposing the probationary sentence that we propose would allow the respondent one last chance to change, both for his benefit and that of society as a whole. [ 40 ] The respondent is most fortunate that, as a condition of his release on bail some 31 months ago, he became enrolled in the Edgewood program. Had he not, such an option would not be open to him today, nor would we consider imposing the probationary sentence that we believe is not only fit, but is one last chance for this respondent to set himself free from the destructive course of life that he had embarked upon.

The chances of his succeeding are, in our view, greater within the context of the Edgewood program than in a correctional institution and that is a greater benefit to society as a whole. [ 41 ] In imposing the sentence that she did, the sentencing judge made the following comments which we consider to be both appropriate and instructive. She said: We heard evidence from Ms. Caruk, who works with these sex offenders, that ultimately effective treatment for such persons is long term, from two to five years is not unusual, and that [the respondent] has developed some skills while in treatment and made some progress.

To commit [the respondent] to a custody and supervision order now would interrupt specialized long-term treatment with little and uncertain prospect of his being able to return to that residential treatment. And importantly, the treatment he would receive in a custodial institution and later on, during community supervision, is uncertain as to type, intensity, duration and availability. . . . As Crown counsel correctly points out, there is no guarantee that [the respondent] will succeed in being rehabilitated at Edgewood and will never re-offend.

But based on all that I have heard and read relative to this case, in my view Edgewood is the best plan for [the respondent] to have the best prospect of rehabilitation and that is the best hope for his reintegrating into society without re-offending, and is therefore best for the long-term protection of the public. The court has to find that [the respondent] needs to remain in a sex-offender-specific residential treatment facility for young persons. Putting [the respondent] in a custodial institution means removing him from that treatment.

While putting [the respondent] in custody would likely be much more satisfactory to the victims’ families, and I understand that, and that seems like much more of a punitive consequence. The court has to try to do what it can to keep future potential victims from becoming actual victims, which in this case, and in my view, means having [the respondent] remain at Edgewood and maintain his treatment plan. [ 42 ] The imposition of a probationary period in the circumstances of this case must be considered as a case and respondent- specific sentence.

Were it not for the respondent’s involvement in the Edgewood program and the possibility of his successfully completing it, we would not consider the sentence we are prepared to impose as being appropriate or fit. [ 43 ] By imposing a probationary sentence, with a condition of continuous participation in the Edgewood program, the respondent will, in all probability, be subjected to controls and restraints for a longer period of time than if he were incarcerated at this time, considering the time remaining to be served, allowing credit for time already served and the application of parole provisions. In

fact, the additional 3 years in the Edgewood program means that, when his sentence lapses, the respondent will have been under some form of court-ordered supervision and control for almost 6 years. [ 44 ] Therefore, in the very unique circumstances of this case, we would grant leave to appeal and impose, after taking into account the 3-month period of pre-sentence custody, the combined sentence of 3 years’ supervised probation that we set out earlier in these reasons, broken down as follows: 1) as each sexual assault is a separate and distinct offence, we would impose the 2-year maximum of supervised probation for each sexual assault offence to be served consecutively.

The mandatory “last look” to address the totality principle concerns is driven by section 42(15) of the YCJA , which provides that the continuous combined duration for sentences imposed at the same time is capped to a maximum of 3 years. The probation conditions would be the same as those imposed by the sentencing judge; 2) with respect to the 2 breach charges, we would impose 18 months of supervised probation concurrent to each other and concurrent to the sexual assault charges; and 3) we would impose a DNA order and a 2-year weapons prohibition. CJM JA I agree: JA