



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
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)
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.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,


(a)       is guilty of an indictable offence and liable to
      imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on
      summary conviction

COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. M.A.H., 2013 ONCA 235

DATE: 20130415

DOCKET: C53844

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.A.H.
(A Young Person Under the
Youth Criminal Justice Act
)

Appellant

Bradley Greenshields, for the appellant

Amy Alyea, for the respondent

Heard: October 12, 2012

On appeal from the conviction entered and sentence
    imposed by Justice Catherine A. Kehoe of the Ontario Court of Justice dated
    March 10, 2011.

Tulloch J.A.:

A.

introduction

[1]

After
    a three-day trial before a judge in the Youth Justice Court, the 16 year-old
    appellant was convicted of robbery and aggravated assault. The trial judge
    imposed a sentence of 5 months closed custody for the offence of assault; 5
    months open custody, consecutive, for the robbery charges, followed by 5 months
    of community supervision. The trial judge also gave the appellant a 12- month
    probationary term and imposed various ancillary orders.

[2]

On
    application by the Crown, pursuant to s. 42(9) of the
Youth Criminal
    Justice Act
, S.C. 2002, c. 1, (the YCJA), the trial judge designated the
    aggravated assault as a serious violent offence within the meaning of that
    statute.

[3]

The
    appellant appeals from his convictions and sentence. At the conclusion of the
    oral argument presented on behalf of the appellant, this court dismissed both
    the conviction and sentence appeals with reasons to follow. These are those
    reasons.

B.

FACTS

(a)

The
    online exchange and consensual fistfight

[4]

The
    violent events in question started with an antagonistic exchange of words and
    bullying over Facebook between the victim, E.T., and the appellant and his
    friends.

[5]

One
    of the appellants friends, A.B., was particularly incensed over this online altercation
    and challenged E.T. to a fistfight. E.T. accepted A.B.s challenge and on
    September 23, 2009, the two boys met to fight.

[6]

Although
    E.T. suffered minor injuries during the fight, it concluded rather
    uneventfully. The appellant, among others, attended the fight to support A.B.

[7]

After
    the crowd dispersed, the boys went their separate ways. E.T and his friend,
    J.C., began their walk home.

(b)

The
    robbery

[8]

Following
    the fight, the appellant and a friend, J.B., formed the intention to rob E.T of
    his cell phone.

[9]

The
    appellant and his friend, J.B. approached E.T. and demanded his cell phone. 
    E.T. was not clear in his testimony as to which one of the two asked for his
    phone, as he was not looking directly at them and did not know them at the time
    of the incident. However, he believed that it was the appellant who
    subsequently pushed him and demanded that he empty his pockets. The appellant
    admitted to being present but nothing more. J.B. pled guilty in a separate
    proceeding to stealing the cell phone, and testified at trial that the
    appellant had not been involved.

(c)

The
    assault on the driveway

[10]

Despite having
    obtained the cell phone without incident, but concerned that E.T. might report
    the robbery, the appellant, J.B. and A.B. proceeded to charge towards E.T.  E.T.
    turned and fled. The appellant pursued E.T. through the neighbourhood.

[11]

Eventually, the
    appellant caught up to E.T. and threw him to the ground on a driveway. Other
    members of the appellants group arrived at the scene, where E.T. was punched
    and kicked by the group members.

[12]

During the
    assault, E.T. was pushed up against a chest-high chain-link fence. As he hit
    the fence, E.T. felt his finger immediately become entangled in the fence. He
    testified that one or two people forcefully pulled him off the fence. He
    further testified that one of these people was the appellant. When E.T. was
    finally pulled off the fence, his finger was severed at the top knuckle.

[13]

After he was
    pulled from the fence, E.T. fell to the ground, yelled and pointed at his
    bloody finger. The crowd panicked and dispersed.

[14]

Unfortunately,
    attempts to re-attach E.T.s finger were unsuccessful.

C.

The conviction appeal

[15]

The appellant
    submits that the trial judge fell into error by reasoning in reverse from the
    injury to the degree of force used to conclude that the requisite
mens rea

had been established. Put another way, rather than considering the nature
    of the blows struck by the appellant, the trial judge focused on the ultimate
    injury to conclude that the force used by the appellant had been extreme or
    extraordinary such that a reasonable person would have appreciated the
    likelihood of bodily harm.

[16]

The trial judge
    found that, while on the driveway, the appellant had thrown E.T. to the ground
    and struck him repeatedly. After the assault on the ground, the appellant
    pushed E.T. into the fence and pulled him off it. During this action, part of
    E.T.s left ring finger was severed.

[17]

From the
    testimony accepted by the trial judge and the obvious damage to E.T.s body,
    apparent from the pictures admitted into evidence, it is clear that E.T. was
    subjected to a violent beating.

[18]

While the
    appellant referred to the severing of E.T.s ring finger as a freak accident,
    the law requires only objective foreseeability of the
risk of bodily harm
and not the risk of injury of the kind that actually occurred:
R. v. L.P.
(2003), 172 C.C.C. (3d) 195 (Ont. C.A.), at para. 15.

[19]

In my view, the
    trial judges conclusion that the risk of bodily harm was objectively
    foreseeable in the circumstances was correct. I do not agree with the
    appellants submission that the judges verdict disclosed the type of reverse
    reasoning error contemplated at p. 380 of the Manitoba Court of Appeals
    decision in
R. v. Matson
(1970), 1 C.C.C. (2d) 374.

[20]

The fact that
    E.T. actually suffered bodily harm only strengthens the trial judges
    conclusion. It was clear from the trial judges reasons that she took his
    injuries as merely reflective of the amount of force used by the appellant in
    concluding that the injury was absolutely foreseeable.

[21]

Accordingly, the
    conviction appeal is dismissed.

D.

the sentence appeal

[22]

The appellant
    appeals his sentence on two grounds. First, he submits that the trial judge
    erred by designating the aggravated assault as a serious violent offence
    (SVO) within the meaning of s. 42(9) of the
YCJA
. The appellant argues
    that the offence could not have been designated as such where the specific
    injury was neither intended nor foreseeable.

[23]

In addition, he
    argues that the overall sentence imposed by the trial judge was manifestly
    unfit having regard to the principle of proportionality under s. 38(2)(c) of
    the
YCJA
.

(a) Designation
    of a serious violent offence under the
YCJA

[24]

On application
    by the Attorney General, a youth justice court may designate an offence a SVO
    pursuant to s. 42(9) of the
YCJA
. Section 2(1) of the
YCJA
defines
    a SVO as an offence in the commission of which a young person causes or
    attempts to cause serious bodily harm.

[25]

In
R. v.
    K.C.
, 2011 ONCA 257, 105 O.R. (3d) 1, this court confirmed that the
    definition of SVO contained in s. 2(1) of the
YCJA

creates a
    preliminary threshold that must be met before a youth justice court can
    exercise its discretion to make a SVO designation. The appellant submits that
    the proper approach to the preliminary threshold requires the youth justice
    court to consider whether the young offender is sufficiently morally culpable
    for his actions. Put another way, since it was unforeseeable to the appellant
    that serious bodily harm would befall E.T. as a result of the appellants
    actions, it would be unfair to subject the appellant to a SVO designation.  I
    disagree.

[26]

Writing for the
    court in
K.C.
, Simmons J.A. declined to fully address the issue of
    foreseeability at the threshold stage of a SVO designation. At para. 71, she
    commented that:

[I]n arguing this appeal, the parties did not address the issue
    of foreseeability of bodily harm as a component of the SVO threshold and I do
    not find it necessary to do so. As I point out below, the trial judge
    concluded, in effect, that the respondent had subjective foresight of bodily
    harm with respect to the second set of charges. That level of foresight would
    clearly satisfy any level of foresight that may be found to be necessary at the
    threshold stage of the analysis. I would add that if foreseeability of bodily
    harm is found not to be a component of the SVO threshold, in my view, it is a
    factor that can be considered as part of the exercise of discretion as to
    whether to make an SVO designation or not.

[27]

At issue in
K.C.
was the proper test to be applied on a SVO designation hearing in relation to
    an offence committed by a young person found guilty as a party. This case, on
    the other hand, involves the appellants first-hand commission of a violent
    aggravated assault. The appellant conceded in this court that the complainant
    suffered serious bodily harm and that the appellant was the legal cause of
    that harm. In these circumstances, whether the element of foresight plays a
    role in a youth justice courts determination whether the SVO threshold is met
    is essentially irrelevant.

[28]

I am of the view
    that, in cases where a youth justice court concludes that a young offender has
    occasioned serious bodily harm to another person, the preliminary SVO threshold
    under s. 42(9) should be automatically met. Whether or not the serious bodily
    harm was reasonably foreseeable should, however, remain a factor at the second
    discretionary stage.

[29]

In
Youth
    Criminal Justice Law
, 2nd ed. (Toronto: Irwin Law, 2009), authors Nicholas
    Bala and Sanjeev Anand suggest that, in considering a SVO designation,
mens
    rea

might only be at issue where serious bodily harm is not
    actually caused by the young offenders actions. At p. 606, Bala and Anand
    state:

If the offence results in serious bodily harm, then the state
    of the youths mind may not be relevant, so that criminal negligence causing
    death would be within the definition. However, if serious bodily harm did not
    result, it must be proven that the youth had the intent to cause serious bodily
    harm, in which the psychological state of the youth would be relevant.

[30]

In
R. v. C.D.
;
R. v. C.D.K.
, 2005 SCC 78, [2005] 3 S.C.R. 668, the Supreme Court of
    Canada concluded that a harm-based definition of violent offence was
    preferable to one that is force-based because,
inter alia
, it reflects
    the traditional definition of violence which tends to focus on the effects of
    violence rather than the means employed to produce those effects.

[31]

At the threshold
    SVO stage, the same logic should apply: the focus should be on the effects of
    the violence rather than the means employed. Once a youth justice court has
    concluded that serious bodily harm has resulted from the young offenders
    conduct, it may still decline to exercise its discretion under s. 42(9) to make
    the SVO designation. In this way, the court retains its flexibility since foreseeability
    remains a factor to be taken into account by the youth justice court when
    exercising this discretion: see
R. v. E.F.
, 2007 ONCJ 113, 157 C.R.R.
    (2d) 189, at para. 46.

[32]

In her reasons
    for sentence, the trial judge referred to
E.F.

and reproduced
    those factors that should and should not be considered by the court when
    exercising its discretion pursuant to s. 42(9). In my view, she had good reason
    to conclude that the aggravated assault committed by the appellant was deserving
    of a SVO designation.  This designation was amply supported by the trial
    judges findings of fact regarding the circumstances of the offence and the
    appellants conduct.

[33]

In the result, I
    see no basis for appellate interference with the trial judges exercise of her
    discretion.  I would not give effect to this ground of appeal.

(b) Fitness of the sentence imposed by the trial judge

[34]

As noted earlier
    in these reasons, the appellant intervened in the online altercation in support
    of his friend A.B. After the consensual fistfight between A.B. and E.T., the
    appellant robbed and assaulted E.T. for a first time. Following the robbery,
    the appellant chased E.T. and, with his friends, continued to beat E.T. During
    this last round of violence, E.T. sustained the permanent loss of part of his left
    ring finger.

[35]

The trial judge
    characterized the appellants actions in this regard as gratuitously violent. I
    agree with her assessment.

[36]

In arriving at
    the sentence imposed on the appellant, the trial judge considered the
    applicable principles of youth sentencing. She concluded that a custodial
    sentence of five months closed custody, five months open custody and five
    months of community supervision followed by a period of probation was
    appropriate.

[37]

In my view, the
    sentence imposed by the trial judge was fit and does not offend the requirement
    of proportionality provided for in s. 38(2)(c) of the
YCJA
.

E.

Conclusion

[38]

As indicated at
    the end of oral argument, both the conviction appeal and the sentence appeals
    are dismissed.

Released:

APR 15 2013                                    M. Tulloch
    J.A.

EAC                                                I
    agree E.A. Cronk J.A.

I
    agree S.E. Pepall J.A.
