R v BS, 2017 MBCA 102

Citation: R v BS, 2017 MBCA 102 Date: 20171017 Docket: AY17-30-08867 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Barbara M. Hamilton Madam Justice Janice L. leMaistre BETWEEN: her majesty the queen ) C. T. St. Croix ) for the AppellantAppellant) ) A. S. Pinx- and - ) for the Respondent ) B.

S. ) Appeal heard and ) Decision pronounced:(Young Person) Respondent) October 17, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify any child victim orchild witness that is connected with an offence committed by a young person that is being dealt with under the Youth CriminalJustice Act (see section 111(1)).

On appeal from 2017 MBPC 23 CHARTIER CJM and LEMAISTRE JA (for the Court): [1] The Crown sought leave to appeal and if granted, appealed the six-month deferred custody and supervision order(DCSO), followed by 12 months of supervised probation imposed on the young person who pled guilty to a major sexual assault (forcedsexual intercourse) on a teenage victim. The Crown had sought a five-month custody and supervision order (CSO).

The young personhad argued that exceptional circumstances warranted a non-custodial sentence of probation. [2] Both counsel agreed that the sentencing judge erred in principle by not concluding that the victim had suffered“serious bodily harm” within the meaning of section 42(5)(

a) of the Youth Criminal Justice Act (the YCJA) and that appellateintervention was justified. [3] At the appeal hearing, we granted leave to appeal, allowed the appeal and imposed the five-month CSO, which wasstayed. These are our reasons for doing so. [4] At the sentencing hearing, both counsel had agreed that the victim had suffered “serious bodily harm” in the form ofserious psychological harm because the young person forced sexual intercourse on her while sleeping and that, as a result, a DCSO wasnot an available sentencing option. Section 42(5)(

a) of the YCJA expressly precludes the imposition of a DCSO if the young person hascaused “serious bodily harm” to the victim. Despite that agreement, the sentencing judge imposed the six-month DCSO, followed by 12months of supervised probation. [5] The sentencing judge found that while the impact statements of the victim and her mother established “ampleevidence of general traumati[z]ation suffered by the victim” (at para 8), it was, in the absence of expert evidence, insufficient to allowhim to find that the major sexual assault caused the victim to suffer “serious bodily harm”.

In doing so, he erred in principle. [6] A series of appellate court decisions have established that while a court cannot presume that psychological harm hasresulted from a sexual assault, the Crown is not required to call expert evidence to find that a victim has suffered “serious bodily harm”.

Rather, courts have clearly accepted that a victim’s testimony and/or a victim impact statement is sufficient to establish psychologicalharm for the purposes of determining if “serious bodily harm” has occurred (see R v McDonnell, (SCC), [1997] 1 SCR948 at para 37; R v VJT et al, 2007 MBCA 45 at para 31; and R v KI, 2011 MBCA 11 at para 18).

[7] Moreover, and as already stated, counsel for the young person had agreed with the Crown that the young person hadcaused “serious bodily harm” to the victim. That fact was not in dispute. Unless there is good reason to believe that a fact, which isagreed upon by both counsel for the young person and the Crown, is not accurate or is unreliable, the judge must sentence in a way thataccords with that fact. In this case, the sentencing judge erred when he failed to find that the victim had suffered “serious bodily harm”and imposed a sentence (the DCSO) that was precluded.

As a result, the sentence cannot stand and we can substitute our view as to a fitsentence. [8] In R v JAH, 2016 MBCA 58, this Court concluded that “it can be inferred or presumed that forced anal and/or vaginalpenile penetration committed on young children causes or attempts to cause serious bodily harm on the victims” (at para 27). Relying onJAH and R v McCraw, (SCC), [1991] 3 SCR 72, the Crown urged us to expand this conclusion to include all casesinvolving a major sexual assault where the victim is under the age of 18 years.

In our view, this is not the case to do so given theagreement between counsel that the victim suffered “serious bodily harm” as a result of the offence. [9] The Crown submitted that a five-month open CSO fairly balanced the youth sentencing principles includingrehabilitation and accountability. The Crown acknowledged extensive mitigating circumstances including the young person’s very lowrisk to reoffend, remorse, victim empathy and pro-social lifestyle, as well as the repercussions in his home community.

The youngperson argued that this is one of those rare cases where exceptional circumstances exist to warrant a non-custodial sentence of probation. [10] As this Court stated recently in JAH, absent exceptional circumstances, the statutory preclusion of a DCSO makes aCSO “the only realistic sentence” (see also R v C (K), 2011 ONCA 257 at para 26). In this case, the young person pled guilty to a majorsexual assault resulting in serious bodily harm to the victim.

Like the sentencing judge, given the seriousness of the offence, we are ofthe view that the imposition of a non-custodial sentence would be inconsistent with youth sentencing principles. [11] In our view, the five-month CSO requested by the Crown fairly balances the various youth sentencing principles, thecircumstances surrounding the commission of the offence and the circumstances of the young person, and would have been a fit sentenceat the time of the sentencing hearing before the sentencing judge. [12] At the appeal hearing, the Crown acknowledged that it was appropriate to take into account the fact that: • The young person served 76 days of his DCSO before it was stayed pending the appeal; • He was on judicial interim release with conditions that mimicked the DCSO for a further 75 days; and • It is now more than two years since the offence was committed and the young person had no control over the delay. [13] Furthermore, the Crown took no position as to whether the young person’s sentence should be stayed in light of thesecircumstances. [14] In the unique circumstances of this case, we found that placing the young person in custody would not be in theinterests of justice (see R v Okemow, 2017 MBCA 59 at para 141).

The young person has been fully compliant with the conditions of hisDCSO and undertaking, he has been attending counselling at Youth Forensic Services regularly and he is employed full time. Accordingly, we stayed the five-month CSO. [15] In the result, leave to appeal the sentence was granted. The sentence was varied and the DCSO was replaced with afive-month CSO, which was stayed. The probation order and all other ancillary orders imposed by the sentencing judge remain thesame. CJM JA JA