



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.

(2) Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

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    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to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    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent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. K.O-M., 2017 ONCA 106

DATE: 20160209

DOCKET: C61270

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.O-M.

Appellant

Owen Goddard, for the appellant

Brock Jones, for the respondent

Heard: October 21, 2016

On appeal from the disposition imposed on November 4,
    2014 and January 14, 2015 by Justice D. Lahaie of the Ontario Court of Justice,
    sitting without a jury.

Benotto J.A.:

[1]

The appellant was convicted of serious offences which she committed when
    she was 15 years old. She was, as the trial judge found, the ringleader of an
    organized and vicious human trafficking enterprise. She forced several other
    teenage girls to work as prostitutes. If they defied her, she would threaten
    them or commit acts of violence. She took photos of them in sexually explicit
    circumstances and threatened to broadcast or distribute them.

[2]

The appellant received an adult sentence of six and one half years in custody. 
    After credit for pre-sentence custody, there remained three years to be served.
    Three years is the maximum youth sentence available in these circumstances. She
    seeks leave to appeal her sentence on the basis that a three-year youth
    sentence would have been of sufficient length to hold her accountable and the
    sentencing judge erred in not imposing it. If leave is granted, she asks this
    court to substitute a youth sentence. The Crown opposes the appeal.

[3]

The appellant seeks to have fresh evidence admitted relating to her
    rehabilitative progress in custody at the Grand Valley Institution. The Crown does
    not oppose the admission of the fresh evidence. The progress made by the
    appellant is relevant to this appeal and, in light of the Crowns position, I
    would admit the fresh evidence.

[4]

For the reasons that follow, I would grant leave to appeal sentence but
    dismiss the appeal.

Facts

[5]

The appellant was born in July 1996. The offences were committed in May
    and June 2012 when she was 15.

[6]

The convictions related to five complainants. These girls ranged in age
    from 13 to 18.

[7]

Three complainants alleged that, on separate occasions, they were lured
    to the appellants house through promises of a sleepover or party. They were 13,
    16 and 17 years old. When they arrived, they were forced to put on provocative
    clothing. In some cases they were given alcohol or drugs. The appellant took
    photos of some complainants and used the photos to advertise them to clients. The
    appellant solicited men to have sex with the girls for money and took them to
    meetings she had arranged. She forced compliance by threatening, forcibly
    confining and assaulting the complainants. Three of the complainants testified that
    they performed oral sex on men to whom the appellant had brought them. The
    appellant was convicted of 23 offences in relation to these complainants,
    including human trafficking, unlawful confinement, uttering threats, robbery,
    assault and sexual assault.

[8]

The fourth complainant, a developmentally-delayed 18 year old woman,
    said the appellant asked her to go to Montreal to work as a prostitute. The
    appellant was convicted of procuring a person to become a prostitute.

[9]

The fifth complainant said the appellant asked her at a party to become
    a prostitute. The appellant took naked pictures of her when she passed out
    drunk. The appellant was convicted of making and possessing child pornography.

[10]

The appellant does not challenge the convictions.

The sentencing

[11]

The parties agreed that the appellant was eligible for custody because
    of the seriousness of the offences and the violence involved:
Youth
    Criminal Justice Act
, S.C. 2002, c. 1,

s. 39(1)(a) and (d). Three
    years was the maximum youth sentence that could have been imposed, given that
    there were different offences: s. 42(15).

[12]

The appellant requested a three year youth sentence, and asked that she
    be given no credit for pre-sentence custody so that this sentence would fall
    within the youth maximum. The Crown submitted that she should receive an adult
    sentence of three years in addition to pre-sentence custody calculated at 1.5:1.

[13]

The imposition of an adult sentence is governed by s. 72(1) of the
YCJA
.
    On agreement of the parties, the trial judge applied the version of the section
    in force until October 22, 2012 which provided as follows:

In making its decision on an
    application heard in accordance with section 71, the youth justice court shall
    consider the seriousness and circumstances of the offence, and the age,
    maturity, character, background and previous record of the young person and any
    other factors that the court considers relevant, and

(a) if it is of the opinion
    that a youth sentence imposed in accordance with the purpose and principles set
    out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to
    hold the young person accountable for his or her offending behaviour, it shall
    order that the young person is not liable to an adult sentence and that a youth
    sentence must be imposed; and

(b) if it is of the opinion
    that a youth sentence imposed in accordance with the purpose and principles set
    out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length
    to hold the young person accountable for his or her offending behaviour, it
    shall order that an adult sentence be imposed.

[14]

The sentencing judge reviewed the appellants personal circumstances. Her
    childhood home was highly dysfunctional. Her mother was a drug addict, exotic
    dancer and prostitute. Her father abused substances and was convicted of
    assaulting her mother. He was complicit in the mothers prostitution. They
    separated when the appellant was 14. The Childrens Aid Society was involved on
    multiple occasions.

[15]

The sentencing judge also considered the Pre-Sentence Report. The
    appellant began associating with persons in their twenties when she was in the
    sixth grade. Her pro-social relationships ended at this time and she began
    abusing drugs and alcohol. The appellants school attendance was poor
    throughout her life. After arrest, the appellant was incarcerated at Sundance,
    a youth detention facility. There, she completed several high school credits
    with a high average. She is intelligent and wanted to become an occupational
    therapist. She completed a number of programs and demonstrated insight into her
    own thoughts and behaviours. She is independent and capable of following rules
    and expectations. However, Sundance staff described the appellant as a manipulator
    who plays the game. She showed little emotion and was noted as having no
    sense of compassion for peers at Sundance. She gravitated towards other sex
    workers in detention and used her street name.

[16]

The sentencing judge ordered a
YCJA
s. 34 assessment. The
    appellant scored as a high risk for future serious violence. The behavioural
    profile suggested narcissistic and antisocial personality functioning that was sociopathic
    in scope. The assessor recommended that the appellant be able to access
    resources within the youth criminal justice system rather than the adult
    system.

[17]

The sentencing judge found that the appellant had little, if any, desire
    to change. She was going through the motions and doing what she perceived as
    necessary to receive the best possible outcome and least restrictive sentence
    from the court.

[18]

The sentencing judge found that the Crown had rebutted the presumption
    of reduced moral blameworthiness despite the appellants age at the time of the
    offences. While she was a product of a poor upbringing, she was highly
    independent and intelligent and had created an adult world for herself. The
    offences were extremely serious. The sentencing judge found that a youth
    sentence would not hold [the appellant] accountable for her actions.

[19]

The sentencing judge then proceeded to consider the mitigating factors: 
    the appellants age; that she was a first offender; that she is highly
    intelligent; that she had completed many of her high school credits and had
    accessed services in detention; that she had a very difficult background; and that
    she expressed remorse.

[20]

The sentencing judge also considered the aggravating factors:  there
    were multiple victims and the impact of the offences on them was significant.
    Some had thoughts of suicide. The appellants actions were predatory,
    well-organized and premeditated. There was troubling violence. She exploited
    the vulnerable. She abused drugs and alcohol and forced the victims to do the
    same. Her activities were for her own profit. Her conduct in custody was not
    exemplary and her risk of re-offending was high.

[21]

The sentencing judge concluded that an adult sentence of six and one half
    years was appropriate. She then granted credit for pre-sentence custody of 878
    days at the ratio of 1.5:1 for a total credit of 1,317 days.

Issues on appeal

[22]

The issues are (i) whether the sentencing judge failed to follow the
    requirement in former s. 72 of the
YCJA
that she consider whether a
    youth sentence was of sufficient length to hold the appellant accountable and
    (ii) whether she erred in refusing the appellants request for no credit for
    pre-sentence custody.

Positions of the parties

Appellants position

[23]

The version of s. 72 applied by the sentencing judge provided that
    judges could only give adult sentences to young persons if they were of the
    opinion that a youth sentence would not be of sufficient length to hold the
    young person accountable for their crime. If the youth sentence would be of sufficient
    length to hold the young person accountable, it had to be imposed. The
    sentencing judge did not follow this framework. She did not consider whether a
    youth sentence would be long enough to hold the appellant accountable for her
    offences. She focused on whether the Crown had rebutted the presumption of
    diminished moral blameworthiness. She found that it had. In her mind, this
    meant that an adult sentence was required. She never asked whether a youth
    sentence was long enough to hold the appellant accountable.

[24]

With respect to pre-sentence custody, the Crown was seeking an adult
    sentence of an additional three years in custody, and the defence was seeking
    no credit for the pre-sentence custody and a three-year youth sentence. The
    sentencing judge erred in concluding that the appellants case was not one of
    those exceptional cases where pre-sentence custody should be discounted in
    order to fall within the range for a youth sentence. The appellant submits
    that credit for pre-sentence custody is supposed to help an offender and not
    lead to an increased sentence.

Respondents position

[25]

The sentencing judge considered all the requirements of then s. 72 of
    the
YCJA
. Her decision, when read as a whole, reveals that she was of
    the view that a youth sentence would not be of sufficient duration to hold the
    appellant accountable for her offences. The sentencing judges emphasis on the
    appellants moral culpability was appropriate.

[26]

With respect to pre-sentence custody, the sentencing judge rejected the
    defence request to give the appellant no credit and impose a youth sentence.
    She said that this was not one of those exceptional cases where pre-sentence
    custody should be discounted in order to fall within the range for a youth
    sentence. This is not a reviewable error. The decision to grant or not grant
    credit is discretionary and entitled to deference on appeal.

Analysis

[27]

The threshold for appellate intervention on sentence was recently
    modified by the Supreme Court of Canada in
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089. The new test was summarized by Laskin J.A. in
R. v.
    Grant
, 2016 ONCA 639, 351 O.A.C. 345, at para. 162:

[W]hen sentencing an individual offender, trial judges have a
    broad discretion and the exercise of that discretion is entitled to deference
    on appeal. An appellate court is justified in interfering with the sentence
    only if the trial judge imposed a sentence that is
demonstrably
    unfit or committed an error in law or principle that had an impact on the
    sentence
. An error in principle includes the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor. [Citation omitted; emphasis added.]

[28]

I see no error of law or principle in the sentencing judges application
    of s. 72 or in her treatment of pre-sentence custody.

Section 72

[29]

The Crowns submission that the appellant should receive an adult
    sentence engaged s. 72(1) of the
YCJA
.

[30]

The Crown has the onus of satisfying the court with respect to s.
    72(1)(b). In
R. v. A.O
., 2007 ONCA 144, 84 O.R. (3d) 561, at para. 42,
    this court wrote that accountability is:

the purpose that the youth court judge must consider when
    deciding an application to impose an adult sentence on a young person.
    Accountability is achieved through the imposition of meaningful consequences
    for the offender and sanctions that promote his or her rehabilitation and
    reintegration into society.

[31]

The court further noted, at para. 47 that a sentence which holds the
    young offender accountable must reflect, as does a retributive sentence, the
    moral culpability of the offender and the harm caused.

[32]

The appellant submits that, since the equivalent of a three-year adult
    sentence was ultimately imposed, a three year youth sentence would have been of
    sufficient length to hold her accountable.

[33]

I do not agree.  The sentencing judge concluded that a sentence of six
    and a half years  not three years  was necessary. Clearly, she was of the
    opinion that a three-year sentence was not of sufficient length. The sentencing
    judge found that the crimes were vicious and premeditated acts designed to
    instill fear, shame, and dominance and to prevent the victims from escaping.
    They were organized and sophisticated offences, targeting vulnerable victims
    for financial gain. While the appellant was only 15, she was capable of adult
    decision-making. A three-year sentence would not have properly reflected the
    appellants moral culpability. A longer sentence was required.

[34]

In my view, the trial judges reasons for sentencing demonstrate that
    she did conclude  based on all the evidence  that the youth sentence would
    not be of sufficient length to hold the young person accountable. I am not
    satisfied that the effects of the adult sentence on her future prospects 
    relating to expunging her record or remaining on the national and provincial
    sex offender registries  would have altered the trial judges conclusion.  She
    sentenced her to six and one half years, not three years. Had it not been for
    her youth, the appellant would have received substantially more.

Pre-sentence custody

[35]

The appellant submits that the sentencing judge erred in refusing the
    request that she grant no credit for pre-sentence custody to bring the total
    sentence within the youth sentence limit: if three years was the net result,
    the sentencing judge should have imposed a youth sentence.

[36]

Under s. 38(3)(d) of the
YCJA
, the sentencing judge was bound
    to consider the time the appellant spent in pre-sentence custody. But it is
    well-established that the sentencing judge has discretion on how to take this
    custody into account:
R. v. D.S.
, 2008 ONCA 740, 93 O.R. (3d) 211;
R.
    v. M.B.
, 2016 ONCA 760. This discretion includes whether and how much
    credit to grant. The decision of the sentencing judge to grant credit for
    pre-sentence custody was within her discretion and I would not interfere with
    it.

The Fresh Evidence

[37]    The fresh evidence demonstrates the progress
    the appellant has made while in custody.  She has completed courses relating to
    women sexual offenders, and has had counselling to assist in her reintegration
    into society.  She has shown a positive attitude and has discussed her plans
    and goals for the future. Her risk of re-offending, initially high has now been
    reduced to low.  She is taking university courses and is now out of custody.

[38]    While I commend the efforts she has made toward
    these positive results, the fresh evidence does not alter my conclusion.

Disposition

[39]    I would grant leave to appeal the sentence but
    dismiss the sentence appeal.

Released: February 9, 2017

M.L. Benotto J.A.

I agree David Watt
    J.A.

I agree P. Lauwers
    J.A.


