R. v. B.M.S., 2016 NSCA 35

Nova Scotia Court of Appeal Citation: R. v. B.M.S. , 2016 NSCA 35 Date: 20160503 Docket: CAC 441649 Registry: Halifax Between: B.M.S. (a young person formally indexed as C.N.T.) Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 110 (1) of the Youth Criminal Justice Act Judges: Beveridge, Saunders and Oland, JJ.A.

Appeal Heard: March 15, 2016, in Halifax, Nova Scotia Held: Leave to appeal granted and appeal allowed, per reasons for judgment of the Court Counsel: Stephen Robertson, for the appellant Mark Scott, Q.C., for the respondent PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110 (1) and s. 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT , S.C. 2002, c. 1 APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 110. (1) – Identity of offender not to be published – Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111. (1) – Identity of victim or witness not to be published – Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Reasons for judgment (by the Court): Introduction [ 1 ] The appellant, a young person as defined by the Youth Criminal Justice Act (“ YCJA ”), pled guilty to theft and possession of child pornography (s. 334(b)(ii) and s. 163.1(4) respectively of the Criminal Code ). He appeals his sentence. [ 2 ] At the conclusion of the hearing of his appeal, we unanimously granted his appeal and advised that reasons would follow. These are our reasons.

Background [3] The police stopped the appellant who was rifling through unlocked cars. He was 14 years old. The appellant had asmartphone on him, which the police inspected for content which might identify its owner. They saw a number of digital images ofyoung women, which depicted their sexual organs. The police determined that the phone belonged to the appellant and seized it.

Whenits onboard memory was opened under the authority of a search warrant, investigators found images of young female acquaintances ofthe appellant, ranging in age from 14 to 16 years old, in sexually explicit poses. [4] On May 13, 2015 the Crown and defence counsel appeared before Judge Del W. Atwood of the Provincial Court. Theappellant entered guilty pleas to the charges of theft from vehicles and possession of child pornography. The Crown recounted theundisputed facts relating to the possession charge.

The judge found that the facts were sufficient to support the guilty plea for thepossession of child pornography charge. [5] On May 27, 2015 the Crown and defence counsel made their sentencing submissions on that charge. The judge was providedwith a Presentence Report. The appellant had no prior criminal record. It had been possible to identify three of the young women whoappeared in the images on the phone.

All three had been notified of their right to provide a victim impact statement; none had done so. [6] The judge adjourned the sentencing on the possession of pornography charge, and the matter of the theft charges. He wantedto be satisfied that adequate inquiries had been made of the women photographed to determine whether they might wish to submit victimimpact statements. [7] The Court received two victim impact statements. The Crown and defence then made a joint recommendation of 18 months’probation for possession of child pornography.

Because he was concerned about the fitness of the proposed sentence, the judgeadjourned the sentencing. He wondered whether a custodial sentence might be available, and gave counsel the opportunity to makefurther submissions. [8] Defence counsel and the Crown sent written sentencing submissions dated June 11, 2015 and July 3, 2015 respectively. Defence counsel argued that this possession of child pornography matter did not involve a “violent offence”; consequently, a custodialsentence was not available.

He also submitted that, if the judge concluded otherwise, such a sentence was still not appropriate in theparticular circumstances. He included a medical letter revealing the appellant’s diagnosis of ADHD and treatment to alleviate impulsivebehaviour. The Crown agreed that there had been no “violent offence.” Both defence counsel and the Crown maintained that their jointsentencing recommendation for a non-custodial sentence of 18 months’ probation, just short of the maximum, was appropriate. [9] The judge disagreed.

He determined that the appellant had committed a violent offence, and sentenced him to six months’deferred custody, followed by 12 months’ probation. He also made ancillary DNA and forfeiture orders. Issues [10] The appellant raised several grounds of appeal. Combined and slightly reframed, they read: (

a) The trial judge erred in law in presuming the existence of psychological harm to the victims and in determining that thisoffence was a violent one; (

b) He erred in law in failing to distinguish the differences between the principles of sentencing for adults and for youths, inparticular with respect to deterrence; and (

c) The sentence he imposed was excessive and overly harsh. Standard of Review [11] Trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law: R. v.Shropshire, (SCC), [1995] 4 S.C.R. 227 at ¶ 46, R. v. Nasogaluak, 2010 SCC 6 at ¶ 43-46. Absent an error in principle,failure to consider a relevant factor, overemphasis of the appropriate facts, or a sentence that is demonstrably unfit, a Court of Appealshould not intervene: R. v. Proulx, 2000 SCC 5 at ¶ 123.

Any error that may be identified by an appellate Court will only justifyintervention if that error had an impact on the sentence ordered: R. v. Lacasse, 2015 SCC 64 at ¶ 41, 43-44. Analysis Violent Offence [12] The judge found that possession of child pornography was a violent offence, and thus a custodial sentence was possible. Hereasoned: [4] The primary question for me to address is whether the child-pornography charge is a violent offence within the context of para.39(1)(

c) of the Youth Criminal Justice Act, so as to make C.N.T. liable, at least potentially, to a custodial sentence. Both the prosecutionand defence counsel argue that it is not.

[5] “Violent offence” is defined in

section 2 of the YCJA as: (

a) an offence committed by a young person that includes as an element the causing of bodily harm; (

b) an attempt or a threat to commit an offence referred to in paragraph (a); or (

c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm. … [8] Given that child pornography, as defined in sub- s. 163.1(1) of the Criminal Code , can include an entirely manufactured depiction (such as a caricature or cartoon) or a written fictional narrative involving the sexualisation of persons under the age of eighteen years, without a human victim actually being ensnared, it would seem that the offence of possessing child pornography is not an offence that includes as an element the causing of bodily harm; this would exclude the application of para. 2(

a) of the YCJA in this case, and, by implication para. 2(b). That leaves para. 2(c). … [10] As in A.B. (Litigation Guardian of) v. Bragg Communications Inc. (a case which dealt with an application to ban the publication of the identity of a minor plaintiff in an action arising from an incident of cyberbullying) I find it useful to make reference to reputable social-science research. [11] “Sexting”—the term used commonly to describe sexual photo sharing, typically by means of smartphones—almost inevitably inflicts serious harm upon young people who are coaxed or intimidated or enticed into performing it.

Sexting is indelible: once an intimate image is transmitted, even if to one recipient only, its digital footprint is embedded in binary cement. Very recent meta- analytical research suggests that those who are enticed or coerced into sexting end up experiencing symptoms of anxiety depression and generalised trauma. This can arise from violence within intimate-partner relationships, or because of peer or cadre pressure[.] Even if notionally “consensual”, it is generally unwanted by the victim whose images are solicited. It is accompanied often by physical and psychological coercion.

Sexting evolves frequently into a pattern of escalating risk-taking behaviour. Adolescent females are the typical victims. Victims frequently have psycho-social biographies involving vulnerabilities that make them susceptible to being pressured into sexting.

Finally, young people who are coaxed or coerced into sexting typically do not experience or recognize the harmful effects of their exposure until long after the fact. [12] In my view, it is a faulty analysis that asserts that C.N.T.’s conduct was not violent simply because there is no evidence before the court that anyone suffered psychological harm. [ 13 ] As the prosecution acknowledged, the term “bodily harm” in para. 2(

c) of the YCJA was defined authoritatively in R. v. D. (C.) as encompassing psychological harm. [ 14 ] Although there were only two victim-impact statements submitted to the court , it was clear to me that the canvassing of victim impact by the prosecution was approached almost as an afterthought, rather than as the very high priority it ought to have been. Nevertheless, even those brief narratives describe poignantly the shame, regret and anxiety which these two young people are— and will be—forced to endure because of the actions of C.N.T.

As for the others, I am confident that I am able—both legally and as an exercise of common sense—to infer the existence of serious psychological victim impact. Furthermore, in my view, it is immaterial that the full impact of this crime might not be felt by the victims until sometime in the future; inevitable prospective harm may render

an act violent, much as planting a time bomb doesn’t hurt anybody right away. Offences of this nature are, yes, psychological time bombs, and no one who commits this sort of crime can claim ignorance.

The dangers inherent in cyberbullying, cyberstalking, sexting, revenge porn and other similar offences against the person are discoursed widely on the internet, in school curricula, the media, youth-oriented community groups, social-service agencies, and within family homes. [ 15 ] Accordingly, there is no doubt in my mind that what C.N.T. did was a crime of violence. [Emphasis added; footnotes omitted] [13] According to his sentencing decision, the judge relied on two sources for his conclusion that the victims had suffered psychological harm such that the offence constituted a violent offence: (

a) social science research, and (

b) the two victim impact statements. We will examine both, beginning with the victim impact statements. [14] Neither of the statements was lengthy. One consisted of three short bullet points: the matter had affected the victim’s grades; she was nervous to go to school because the appellant might be there; and, it made it hard to trust some people. The second statement filled less than half a page. That victim indicated that she was angry with herself because she had not realized the consequence of her actions. Her parents were angry and disappointed, and she felt ashamed. Because she had chosen to send the selfies to the appellant, she had not felt like a victim at the time.

[15] The victim impact statements describe the effect the offence had on those victims. However, these particular recounts, eitheralone or in combination, are far from sufficient to support the inference that the judge made. While they may speak of shame, regret, andoccasional anxiety, there is no indication of any turbulent emotion or continued distress. There is no suggestion of any impairment offunction or serious consequence upon which an inference of psychological harm or serious psychological harm could be founded. [16] I turn then to the judge’s reliance on his own social science research.

There is no indication in the record that he advisedcounsel that he would be conducting and relying on independent research. No expert was called to introduce material or subjected tocross-examination as to its relevance, value, or weight. [17] A trial judge cannot rely on social studies or literature or scientific reports unless they have been accepted after being properlyintroduced and tested by the parties: see, R. v. P.(S.D.) (1995), (ON CA), 98 C.C.C. (3d) 83 (Ont.C.A.) at ¶ 33, 36;Cronk v. Canadian General Insurance Co. (1995), (ON CA), 85 O.A.C. 54 at ¶ 47, 49-51; R. v.

Désaulniers (1994), (QC CA), 93 C.C.C. (3d) 371, (Que.C.A.) at ¶ 21, 23-24, 26-27. [18] In ¶ 10 of his decision, the judge relied on A.B. v. Bragg Communications Inc., 2012 SCC 46 as authority for his considerationof social science in order to resolve the central issue of whether psychological harm resulted in this case. Respectfully, his understandingof that decision was flawed. [19] In Bragg, a teenage girl wanted a publication ban and to use pseudonyms in seeking disclosure of the identity of a person linkedto a Facebook profile.

The motions judge’s dismissal of her application was upheld by the Court of Appeal. In allowing the appeal inpart, the Supreme Court of Canada referred, among other things, to The Report of the Nova Scotia Task Force on Bullying andCyberbullying and to a UNICEF study. However, that material and the potential harm generally associated with cyberbullying were notcontentious.

Rather, the issue to be resolved was whether the applicant was required, without more, to prove real and substantial harm toherself in order to displace the presumption of open courts. [20] In contrast, the judge here used the articles he found, without notice or a proper foundation, to decide a central and contentiousissue, namely whether there was psychological harm that amounted to a “violent offence”. From that material, he inferred that theappellant’s actions had caused not only the victims who provided victim impact statements, but all the persons who were photographed,serious psychological harm.

His use of it to decide a central issue was an error which had a material effect on the sentence he imposed. Sentencing Principles [21] I will deal with the second and third issues together. [22] In concluding that a custodial sentence was appropriate, the judge included general deterrence as one of the factors to beconsidered: [16] What, then, would be a meaningful consequence. The prosecution suggests that, as C.N.T. is a young person, the objectivesof sentencing are different to those implicated in cases involving adults. I do not agree with that proposition.

While the ordinalpriorities might be different, s. 38 of the YCJA lays out most of the same sentencing principles courts apply when dealing with adults:and so it is that accountability, parity, proportionality, denunciation, deterrence and restraint—all of which are integral to the impositionof just sanctions that have meaningful consequences for young persons—are essential features in all sentencing hearings. [17] Taking into account all of those factors, and taking into account the prevalence of this particular type of crime in thiscommunity, I am of the view that a purely community based sentence, while certainly rehabilitative, would not effectively deterthe scourge of this type of crime.

A period of custody is necessary. It is the only option which I see as meaningful, because thiswas a serious crime with serious impact upon the victims, and C.N.T. alone is responsible for it. [18] However, given the fact that C.N.T. pleaded guilty to the s. 163.1 charge, does not have a prior record, appears to have greatinsight into the harm that he caused, and has a very loving family that will support his counselling efforts, I am of the view that aperiod of six months of deferred custody would be appropriate for that count.

There will be a period of probation of twelvemonths to follow the deferred-custody term, and that will apply to the two theft charges as well. These orders will includeappropriate counselling conditions, as well as restrictions upon C.N.T.’s ability to access the internet. [Emphasis added] [23] In stating that the objectives of sentencing are the same for young people and adults, and by including general deterrence as asentencing principle under the YCJA, the judge erred in law. [24]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing. In the search for a just sanction, a number ofobjectives are listed. Among them are denunciation of unlawful conduct and deterrence of the offender and other persons fromcommitting offences. The

section reads: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 25 ] There can be no doubt that general deterrence is a legitimate part of the sentencing regime for adult offenders. As will be demonstrated, not so for young persons. [ 26 ] The YCJA expressly provides that the treatment of young persons is different from that of adults: 3(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability … (

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, involve the 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 young persons with special requirements; …

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [ 27 ] The YCJA sets out the purpose of sentencing and the principles to be applied in sentencing a young person: Purpose 38

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been 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 offence committed 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 that offence; (

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; 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. Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account (

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 purpose and principles set out in this section. [ 28 ] Read together, ss. 3 and 38(1) show the clear and meaningful difference in the objectives to be considered and the principles to be applied by a judge when sentencing young persons as opposed to adults. [ 29 ] Over the years, the Supreme Court of Canada has repeatedly emphasized that there are two sentencing regimes, one for young persons and one for adults. See, for example, R. v.

D.B. , 2008 SCC 25 where, at ¶ 1, Abella J. described how young people are “differently accountable” and, at ¶ 41, she reiterated that Canada has “a separate legal and sentencing regime for young people” because of their vulnerability, and lower maturity and capacity for moral judgement which “entitles them to a presumption of diminished moral blameworthiness or culpability.” [ 30 ] Section 38(2)(f)(ii) states that a youth sentence may include as an objective the deterrence of “the young person” from committing offences.

The judge’s reasons show that he considered general deterrence when he concluded that a custodial sentence was appropriate. He took into account “the prevalence of this particular type of crime” in the community and emphasized the need to effectively deter the “scourge” of such conduct. In doing so, the judge broadened deterrence beyond specific deterrence of “the young person” to general deterrence of others in the community from committing such an offence. [ 31 ] General deterrence plays no part of the YCJA sentencing analysis. See, for example, R. v. H.(B.) , 2013 CarswellNfld 435 (Prov.

Ct) at ¶ 43 , 45 and 48; R. v. S.(S.N.J.) , 2013 BCCA 379 at ¶ 27-30 ). In including it as a factor in crafting an appropriate sentence for a young person, the judge erred. [ 32 ] The judge’s reasons at ¶ 17 stated that custody was “the only option which I see as meaningful, because this was a serious crime with serious impact upon the victims, and [B.M.S.] alone is responsible for it.” If the judge meant that the sentence would be a meaningful consequence to deter others, this would constitute a legal error since, as explained earlier, general deterrence is not a consideration in sentencing a young person.

If he meant that it would be a meaningful consequence to this particular young person, this would be an unreasonable finding. [ 33 ]

Section 3 of the YCJA speaks of meaningful consequences to the individual young person given his needs and level and development, and where appropriate, involving the parents and other supports for rehabilitation and reintegration.

Section 38 requires the meaningful consequences to accord with the other purposes and principles of sentencing, including the least restrictive sentence which is capable of achieving that provision’s objectives. [ 34 ] In R. v. C.D. , 2005 SCC 78 , Bastarache J. noted at ¶ 48 that the YCJA “was designed, in part, to send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for young offenders”.

At ¶ 50, he stated that “the object and scheme of the YCJA , as well as Parliament’s intention in enacting it, all indicate that the YCJA was designed, in part, to reduce over- reliance on custodial sentences for young offenders”. [ 35 ] The appellant was 14 years old when he committed the offence of possession of child pornography. Not only was he young, but he had learning difficulties and impulsiveness.

He was also dealing with issues of marijuana consumption and problems at school and with studies. [ 36 ] There were some 12 images of posing and close-ups of genital areas of individuals retrieved from the appellant’s cellphone. In ¶ 1 of his decision, the judge’s recounting of the agreed facts was not entirely correct. He stated that the appellant had admitted to sharing some of the images with an adult when nothing in the record indicates that that person was an adult. In any event, there was no widespread distribution.

Moreover, the judge described the appellant as “repeatedly extorting – and I use that term in the sense of [the appellant’s] persistence – sexualized images from the victim by telling her he would not otherwise be her boyfriend.” However, the texts show only that the victim indicated that she wanted the appellant to be her boyfriend, and he asked that she send more images of herself in order for him to consider her request.

While this may be exploitation, there was no evidence of bullying, threats, harassment, or extortion. [ 37 ] As the judge stated, the appellant had no prior criminal record and had great insight into the harm he had caused. He had pled guilty early and accepted responsibility for his actions. He was described as quiet, forthright, and remorseful. His family supported the

counselling he had undertaken. [ 38 ] Even if possession of child pornography had been properly found to be a “violent offence”, in the circumstances of this case a custodial sentence was not the only option, nor the least intrusive sentence, that had “meaningful consequences” for this young person. Disposition [ 39 ] The judge’s inappropriate use of independent social science research to determine a central issue, and his reliance on general deterrence as a relevant sentencing feature which mandated custody, constitute errors which materially affected the sentence he imposed on the appellant.

The Crown conceded that the judge erred in finding that there had been psychological harm that amounted to “a violent offence” and in considering general deterrence in determining sentence. [ 40 ] We would grant leave to appeal and allow the appeal. The appellant has already served his six month deferred custody order. We would sentence him to a period of probation for a duration of 18 months from the date of the original sentence, with the conditions as jointly recommended and found in the probation order made by the trial judge. Beveridge, J.A. Saunders, J.A. Oland, J.A.