R v JGHW, 2020 MBCA 86

Citation: R v JGHW, 2020 MBCA 86 Date: 20200915 Docket: AY19-30-09381 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) C. R. Savage ) for the Appellant Appellant ) ) A. E. Beddome ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: J. G. H.

W. ) September 4, 2020 ) (Young Person) Respondent ) Written reasons: ) September 15, 2020 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)).

PFUETZNER JA (for the Court): [ 1 ] The Crown seeks to appeal a two-year probationary sentence imposed on the young person for sexual offences committed against his two younger half-brothers, CF and HF, that started when they were approximately 1 ½ and 8 ½ years old, respectively, and continued for more than three years. At the hearing of the appeal, we granted leave to appeal, varied the sentence to include a 12-month custody and supervision order and stayed the effect of that order, with reasons to follow.

These are those reasons. [ 2 ] The young person pleaded guilty to six charges: sexual interference (two counts) (

section 151 of the Criminal Code (the Code )); making child pornography (two counts) (

section 163.1(2) of the Code ); distributing child pornography (

section 163.1(3) of the Code ); and making arrangements for a child under the age of 16 years to be sexually assaulted (

section 172.2(1) (

b) of the Code ). Upon entering his guilty pleas, several other charges were stayed by the Crown. [ 3 ] The young person filmed some of the offences and live streamed some of the abuse via his PlayStation3 online gaming system. The sexual abuse depicted in the recovered images and videos included oral sex on, masturbation of the young person and “anal intercourse or a penis shoved between … buttocks”.

He engaged in making arrangements for the victims to be abused by a stranger, which ultimately did not occur. [ 4 ] The young person claimed that he committed the offences in response to online threats from individuals to the effect that he and his family would be harmed if he didn’t comply. At the sentencing hearing, the Crown disputed this claim and characterized the young person as a “predator”.

From his reasons, it is implicit that the sentencing judge did not accept that the young person had been threatened. [ 5 ] The sentencing judge considered both the aggravating factors (the lengthy abuse; that he was in a position of trust;

that the abuse was recorded and live streamed with the victims’ faces visible) and the mitigating factors (including that the youngperson had the immediate consequence upon arrest of two weeks in adult jail; that he complied with strict bail conditions for a lengthyperiod of time; the guilty pleas; and that he provided a statement to police that resulted in additional charges against him). Thesentencing judge also had before him, and took into account, a forensic report indicating the young person has “cognitive processingdelays, adaptive functioning difficulties, and executive functioning limitations”.

A pre-sentence report that included a Gladue (see R vGladue, (SCC), [1999] 1 SCR 688) report filed at the sentencing hearing revealed that as an infant he had been thevictim of physical abuse by his biological father. [6] At the sentencing hearing, the Crown recommended that the young person be sentenced to two years’ custodyfollowed by one year of probation.

The young person asked for a sentence of two years of supervised probation. [7] The Crown pointed out at the sentencing hearing that a deferred custody and supervision order was not available(given that the victims had suffered serious bodily harm: section 42(5)(

a) of the Youth Criminal Justice Act (the YCJA)), leaving onlyprobation or a custody and supervision order as available sentences. The Crown submitted that an order of probation was not reasonablein the circumstances. [8] Ultimately, the sentencing judge concluded “that there are reasonable alternatives to custody, and for that reason I amnot going to send him into custody today”. He imposed a sentence of two years’ supervised probation, concurrent on all charges. [9] The Crown raises several issues on appeal.

In our view, it is only necessary to address one of these issues in order todispose of the appeal – did the sentencing judge err in principle by failing to consider whether the sentence imposed would hold theyoung person accountable as set out in section 38(1) of the YCJA. Analysis [10] The standard of review applicable to sentencing decisions is deferential.

Absent an error in principle that had a materialimpact on the sentence or a sentence that is demonstrably unfit, an appellate court should not intervene (see R v Friesen, 2020 SCC 9 atpara 26). [11] Section 38(1) of the YCJA provides that the purpose of sentencing is: . . . to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for theyoung person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection ofthe public. [12] Mainella JA in R v Okemow, 2017 MBCA 59 at para 47, observed that “the focus of sentencing under the YCJAremains about balancing conflicting principles to arrive at a sentence tailored to the individualized circumstances”. [13] As this Court noted in R v McClements, 2017 MBCA 104 at para 45, a meaningful sentence to hold a young personaccountable must reflect three criteria: 1) The moral culpability of the young person, having regard to the intentional risk taking of the young person; 2) The consequentialharm caused by the young person; and 3) The normative character of the young person’s conduct (see O (A) [R v O (A); R v M (J), 2007ONCA 144] at para 47).

The normative conduct inquiry requires the court to consider societal values and whether, for example, the“circumstances of the offence are shocking to the community.” [14] The sentencing judge did not avert to accountability in his reasons or to these three criteria.

However, his reasons doreflect factual findings in respect of the degree of responsibility of the young person, the harm caused to the victims and the abhorrentnature of the offences. [15] In respect of moral culpability, the sentencing judge found that the Crown had “some support” for its position that theyoung person was a willing participant in the abuse of the victims and was not coerced.

This was based on an online chat that took placeover several days with a user named “Satan disciple” where the young person refers to the victims as “the 2 anal baits” and repeatedlyasks “Satan disciple” when he will pick up the young person and his brothers to take them to a place where the victims will be abusedfurther. However, in response to the Crown’s argument that the young person was a “predator”, the sentencing judge stated “I’m surethat . . . it’s more complex than that.

There’s aspects of it because of his cognitive functioning which I think made – perhaps made itdifficult for him to resist this”. [16] The consequential harm caused by the young person is alluded to by the sentencing judge when he stated, “No matterwhat sentence I impose on [the young person], the brothers will serve a life sentence.

This is something that’s going to impact them forthe rest of their lives.” [17] This assessment of the consequential harm caused by these offences is consistent with the Supreme Court of Canada’sdecision in Friesen (released after the sentencing judge’s decision) which discusses society’s growing understanding of the perniciouslong term psychological damage that childhood sexual abuse causes to people (see paras 50-59). As Friesen deals with an adultsentence, caution must be taken in applying it to a sentencing under the YCJA; however, it sets out important principles about the harm

caused by sexual offences against children. [ 18 ] Finally, the sentencing judge’s evaluation of the normative character of the young person’s conduct is stark. He states, “These are very, very serious facts. . . . There are elements that are extremely concerning. The fact that these were being streamed is extraordinarily aggravating.” Later in his reasons he refers to the offences as “horrific” and says “there’s no way of minimizing how serious this is”. [ 19 ] By any measure, the circumstances of these offences are shocking to the community.

The two young victims were sexually violated in their own home over a period of years by their older brother, often while he was in charge of babysitting them.

He filmed the abuse and transmitted it to others. [ 20 ] As Mainella JA wrote in Okemow (at para 67 ), “It has always been a facet of the concept of accountability that, for serious offences involving violent crime, a youth sentence must promote, not undermine, public respect for the administration of justice.” [ 21 ] In our view, while the sentencing judge imposed a sentence meant to promote the rehabilitation and reintegration into society of the young person, he erred in principle in failing to impose a sentence that would also hold the young person accountable through meaningful consequences and this error had a material impact on the sentence.

The sentence of two years’ probation failed to adequately reflect the consequential harm of the young person’s actions or the normative character of his conduct. [ 22 ] In our view, a period of incarceration is required to properly hold the young person accountable.

Taking into account the aggravating and mitigating factors as found by the sentencing judge, we would vary the sentence by imposing a 12-month secure custody and supervision order, being eight months’ secure custody followed by four months’ supervision in the community, in addition to the supervised probation and ancillary orders of the sentencing judge, to be allocated as follows: • in respect of the counts relating to HF, being counts 2 (sexual interference, 4 (distribute child pornography) and 5 (make child pornography) – three months’ secure custody followed by one and one-half months’ supervision in the community, concurrent; • in respect of the counts relating to CF, being counts 12 (sexual interference) and 14 (make child pornography) – three months’ secure custody followed by one and one-half months’ supervision in the community, concurrent, but consecutive to the above counts relating to HF; and • in respect of count 17 relating to both HF and CF (make arrangement to commit sexual assault) – two months’ secure custody followed by one month supervision in the community, consecutive. [ 23 ] At the appeal hearing, we were advised that the young person has been compliant with the terms of his supervised probation since the date of sentencing, including a curfew.

We are also cognizant of the fact that the last offences occurred in June of 2017, now more than three years ago, and that he has been under restrictive conditions since his arrest in May of 2018. The young person is now 21 years old. As a result, he would be required to serve the custodial portion of his sentence in an adult correctional facility (section 89(1) of the YCJA ). [ 24 ] In these circumstances, we are of the view that placing the young person in custody at this time would not be in the interests of justice ( see Okemow at para 141 and R v BS , 2017 MBCA 102 at para 14 ).

Accordingly, we stayed the effect of the custody and supervision order. [ 25 ] In the result, leave to appeal the sentence was granted. The sentence was varied to add a 12-month custody and supervision order to the two years of supervised probation order. The custody and supervision order was stayed. The probation order and all other ancillary orders imposed by the sentencing judge remain the same. JA JA JA