R. v. C.S.Y., 2022 NSSC 122

SUPREME COURT OF Nova Scotia Citation: R. v. C.S.Y. , 2022 NSSC 122 Date: 20220315 Docket: Halifax , No. 506391 Registry: Halifax Between: Her Majesty the Queen v. C.S.Y. SENTENCING DECISION Restriction on Publication: ss. 486.4 – Any information that will identify of the complainant, victim, or witness shall not be published in any document or broadcast or transmitted in any way. Judge: The Honourable Justice Joshua Arnold Heard: March 15, 2022, in Halifax, Nova Scotia Counsel: Sarah J. Lane, for the Provincial Crown Jonathan Hughes, for C.S.Y. Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Overview [ 1 ] C.S.Y. plead guilty to a single count of sexual assault in relation to his step-daughter, encompassing three separate incidents, when she was between four and six years old. Crown and defence came to a negotiated plea agreement after what was described as a

protracted negotiation. They jointly recommend a sentence of five years in prison, less credit for remand time, along with a number of ancillary orders. For the reasons that follow I accept the joint recommendation. Facts [ 2 ] Mr. Y. entered a guilty plea to the following offence: That he between the 1 st day of January 2018 and the 31 st day of December 2019, at or near Dartmouth, Nova Scotia, did unlawfully commit a sexual assault on C.F.S., contrary to

Section 271 of the Criminal Code . [ 3 ] An agreed statement of facts was placed before the court as an admission and was exhibited. It states: Agreed Statement of Facts Pursuant to sections [sic] 655 of the Criminal Code , Mr. C.S.Y. admits, for the purposes of dispensing with proof thereof, the following: Between Jan 1, 2018 and December 31, 2019 C.Y. did, on 3 occasions commit a sexual assault on his step-daughter C.F.S. while she was between 4 and 6 years old. Each of these assaults occurred while A.F. (the mother of C.F.) was at work and C.F.S. and Mr. Y. were home alone.

The following incidents occurred during the aforementioned date range: 1. Mr. Y. told C.F.S. to get into bed with him, take off her underwear and roll over. After doing so, Mr. Y. spread C.F.S.’s legs and licked her on her vulva. Afterwards he took her to the park. 2. On a separate occasion, Mr. Y. took off his pants and rubbed his penis on C.F.S.’s bare buttocks. 3. On a third occasion, Mr. Y. forced his penis into C.F.S.’s mouth. Mr. Y. attempted to insert his penis into C.F.S.’s mouth to which she responded “no”. Mr. Y. then told her to “close your eyes and open your mouth.” C.F.S. complied and Mr.

Y. forced his penis into her mouth. After C.F.S. gagged on Mr. Y.’s penis, he stopped, told her she was “all done” and took her to the park to play. Victim Impact Statements [ 4 ] Victim Impact Statements were prepared by A.F., the victim’s mother, and J.F., the victim’s grandfather. Some of A.F.’s comments include: I am hurt. I am infuriated. I am disgusted. I cannot fathom what goes wrong in someone’s brain to cause them to consider doing this to a child and then following through with those thoughts. … C. is so smart; her cognitive development is advanced for her age.

She knows what happened to her but has very little concept that what happened is WRONG. She perceived this person as a trusted part of her family, someone to keep her safe, AS DID I. I will never forgive myself for not seeing any signs, for not realizing what was happening. While I was working two jobs trying to provide for my family, my daughter’s world was being shattered. Since my daughter told me what happened, I have become extremely overprotective of her, to the point where I often find myself paranoid and hypervigilant when she is around any man.

A man who is being friendly to my daughter is automatically flagged as a red flag in my head. … Believe me when I say that while today may provide my daughter and I with some closure, C. is now a statistic, and will forever be a statistic. No amount of justice today will make up for what she has suffered and endured, and this will affect the rest of our lives. [ 5 ] Some of J.F . ’s comments include : As a Grandparent, I have been confronted with the unimaginable…sexual abuse inflicted upon my Granddaughter. There is nothing you can do to prepare for this…it would be too difficult to anticipate such an evil act.

It is like a sudden and very unexpected death of a loved one. It comes out of nowhere and pummels you without mercy. And I am hurting for C. and I am hurting for me. The sexual abuse inflicted upon C. by Y. has caused me incalculable stress and untold anxiety. I have been consumed by the trauma my Granddaughter has been subjected to by Y.. I am suffering emotionally and mentally and I am grappling with it day-to-day. My life is no longer the same. The sexual abuse C. suffered has also impacted my relationship with my partner.

Fortunately for me, she is a strong person and continues to provide me with unwavering support. Regrettably, it has also affected her as she is confronted with my emotional challenges on a daily basis. And she herself is also personally impacted as she considers C. like one of her own Grandchildren. C. has lost her innocence. And in a similar sense, I have lost my innocence and my faith in humanity. I am suffering along with C. As parents and grandparents, we want to take the hurt and the pain our children are suffering onto ourselves.

Unfortunately, I cannot take C.’s suffering away from her or alleviate any of her pain. If I could, I would gladly sacrifice my own well-being for her’s. … However, since the revelation of Y.’s sexual abuse on C., she is not the same girl. She is more subdued and does not have the same spirit.

Although she will share with me, she is clearly less exuberant about it. When she does share with me, it tends to be the more mundane. FaceTime might be once a week and, generally, it is at my instigation. And when we do FaceTime, she is much more reserved and, at times, quite subdued. C. has not mentioned once…not once, about the sexual abuse that she suffered from Y. This is very uncharacteristic of her…eventually I would always hear about the not-so-good. … He robbed C. of her innocence. She didn’t stand a chance against him. There is no part of her life that was or will be left untouched.

And she has been sentenced to life that will be significantly less than it could have been because of him. Her life has been devastated by his selfishness. And she will pay an, as yet, indeterminate price for his depraved sexual desires. Will she ever be able to fully trust again? Will I ever be able to fully trust again? C. will pay a price for his actions, his abuse, his lies and his total failure to be a decent human being. And so will I… My life has been irrevocably affected as well. I have been robbed of the smiling, effervescent, charming, full-of- life Granddaughter.

Every time I am with C., I feel immense sadness for her…and for me. … I cannot imagine that we will ever fully recover from the traumatic events perpetrated by Y. on C. We will live with it on a daily basis for the rest of our lives. We are in survival mode. The toll is incalculable and, at best, I think we will only learn how to cope with it. [as appears in original] [ 6 ] Mr. Y.’s crime has had a profound impact on C.F.S. and her family. Sentencing provisions of the Criminal Code [ 7 ] The Criminal Code provides clear guidance as the appropriate principles to consider on sentence.

Sections 718 and 718.01 state: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. R. v. Friesen [ 8 ] The parties rely heavily on R. v.

Friesen, 2020 SCC 9 , where Rowe J., for the court, discussed the incredibly devastating repercussions for children who are sexually abused, and the need for Canadian courts to raise the bar regarding custodial sentences for sex offenders who prey on children. Justice Rowe said variously (some citations omitted): [1] Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.

Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. … [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. … [45] We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justice responses alone cannot solve the problem of sexual violence against children.

Rather, guaranteeing children in Canada a childhood free of sexual violence requires coordinated action by all levels of government and by civil society across policy domains as diverse as healthcare, education, and child welfare. Nonetheless, the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament’s sentencing initiatives their

full effect. … [58] These forms of harm are particularly pronounced for children. Sexual violence can interfere with children’s self- fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity… For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life” ( Stuckless (2019) , at para. 136, per Pepall J.A.).

As Otis J.A. explained in L. (J.-J.) , at p. 250: [ translation ] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a very fragile defensive structure, will result — in the long term — in suffering, distress and the loss of self-esteem. … [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship...

If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim... Children who are or have been in foster care may be particularly vulnerable since making an allegation can result in the end of a placement or a return to foster care...

Even when a parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional… For instance, siblings and parents can reject victims of sexual violence because they blame them for their own victimization… Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result… [61] The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know.

They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities… This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child… Technology and social media can also compound these problems by spreading images and details of the sexual violence throughout a community… … [63] The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.

Sexual violence can destroy parents and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty… The harm to parents’ relationship with their children can also be profound. For instance, children can react to the sexual violence by shutting their parents out of their lives... Parents and caregivers may also bear the financial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges… … [65] The protection of children is one of the most fundamental values of Canadian society.

Sexual violence against children is especially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity… Yet instead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objects whose vulnerability can be exploited by more powerful adults.

There is an innate power imbalance between children and adults that enables adults to violently victimize them… Because children are a vulnerable population, they are disproportionately the victims of sexual crimes… … [78] The wrongfulness of the exploitation of children is also always relevant to the normative character of the offender’s conduct and thus the gravity of the offence. It is inherently exploitative for an adult to apply physical force of a sexual nature to a child...

This exploitation is rooted in the power imbalance between children and adults, the potential harm that sexual interference by adults poses to children, and the wrongfulness of treating children not as persons with equal dignity but instead as sexual objects to be used by adults.

Courts must always give effect to the wrongfulness of this exploitation in sentencing, even if the degree of exploitation may vary from case to case... [79] In addition to the inherent wrongfulness of physical interference and exploitation, courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. The likelihood that these forms of potential harm will materialize of course varies depending on the circumstances of each case.

However, the potential that these forms of harm will materialize is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference. These forms of potential harm illustrate the seriousness of the offence even absent proof that they have materialized into actual harm… … [81] Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years.

First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood… Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults… …

[88] Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is orought to be aware that this action can profoundly harm the child.

In assessing the degree of responsibility of the offender, courts musttake into account the harm the offender intended or was reckless or wilfully blind to… For sexual offences against children, we agreewith Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical,psychological, and emotional harm that their actions may cause the child... … [90] The fact that the victim is a child increases the offender’s degree of responsibility.

Put simply, the intentional sexualexploitation and objectification of children is highly morally blameworthy because children are so vulnerable... As L’Heureux-Dubé J.recognized in R. v.

L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, “As to moral blameworthiness, the use of a vulnerable child for the sexualgratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions” (para. 31, quoting R. v.L.F.W. (1997), (NL CA), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, per Cameron J.A. (“L.F.W. (C.A.)”)).Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires...

We would emphasizethat the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable,including children who belong to groups that face discrimination or marginalization in society. [9] Friesen has provided clear guidance to the court as to the appropriate considerations when imposing a sentence for a sex crimecommitted against a child by an adult, as is the case here.

Joint Recommendations [10] The parties have placed the following joint sentencing recommendation before the court: • 5 years custody less remand credit (539 days enhanced ((359 days at 1.5 credit)). 1,286 days going forward) • Mandatory weapons prohibition order pursuant to

section 109 CC • DNA Order pursuant to

section 487.051 CC • SOIRA order pursuant to

section 490.013(1)(

a) CC • A non-communication order with C.F.S., A.F. and J.F. during the jail sentence pursuant to s. 743.21 CC • A s.161 CC order for a period of 10 years [11] Crown and defence agree that this is a true negotiated plea agreement that involved give and take regarding legal and factualissues on both sides. They indicate specifically that there were frailties with the Crown’s case due to the age of the complainant, the lackof corroborating witnesses and additional recent disclosure. From the defence perspective, Mr. Y. is African Nova Scotian and iscurrently 25 years old.

He was relatively youthful when the offences occurred. He has a horrendous record of 49 retainable Youth Courtconvictions plus 21 convictions as an adult, many for violent offences. This is his first conviction for a sex-related crime. He was in abreach of trust position with C.F.S. as her step-father/caregiver. [12] In R. v.

Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, Moldaver J., speaking for the court, discussed the need forcourts to follow joint recommendations and the test to be applied by a trial judge when considering a joint recommendation: [34] In my view, these powerful statements capture the essence of the public interest test developed by the MartinCommittee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes asubmission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informedpersons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believethat the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as Ishall explain. [35] Guilty pleas in exchange for joint submissions on sentence are a “proper and necessary part of the administration ofcriminal justice” (Martin Committee Report, at p. 290).

When plea resolutions are “properly conducted [they] benefit not only theaccused, but also victims, witnesses, counsel, and the administration of justice generally” (ibid., at p. 281 (emphasis deleted)). … [44] Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all thebenefits of joint submissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects theinterests of both the public and the accused...

As a rule, they will be highly knowledgeable about the circumstances of the offender andthe offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community’sinterest in seeing that justice is done... Defence counsel is required to act in the accused’s best interests, which includes ensuring that theaccused’s plea is voluntary and informed... And both counsel are bound professionally and ethically not to mislead the court...

In short,they are entirely capable of arriving at resolutions that are fair and consistent with the public interest... [13] The sentence being jointly recommended by counsel after protracted plea negotiations is well within the new range of sentencefor this crime. It is certainly not a sentence that is contrary to the public interest and there is no reason to deviate from the jointrecommendation. Conclusion [14] Denunciation and deterrence are of paramount import in sentencing Mr. Y. for this crime. His moral blameworthiness is high.

He chose his own sexual gratification over any concern for the physical and psychological well-being of his step-child, who was in his care. Additionally, he has a significant criminal record for violence. However, he did plead guilty. The joint recommendation proposed by Crown and defence is appropriate. Mr. Y. will be sentenced to the following: • Five years’ custody less remand credit (539 days enhanced ((359 days at 1.5 credit)). 1,286 days going forward) • Mandatory weapons prohibition order pursuant to

section 109 CC • DNA Order pursuant to

section 487.051 CC • Sex Offender Information Registration Act order pursuant to

section 490.013(1)(

a) CC • A non-communication order with C.F.S., A.F., and J.F. during the jail sentence, pursuant to s. 743.21 CC • A s. 161 CC order for a period of ten years Arnold, J.