



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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless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    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure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.




WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.B., 2013 ONCA 675

DATE: 20131107

DOCKET: C57039

Rosenberg, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. B. (a young person)

Appellant

Craig Parry, for the appellant

Andrew Menchynski, for the respondent

Heard: October 28, 2013

On appeal from the sentence imposed on March 12, 2013 by
    Justice J.E. Allen of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals from the disposition imposed by Allen J. on March
    12, 2013 of 12 months closed custody and supervision and 12 months probation on
    a charge of sexual interference. For the following reasons the appeal is
    dismissed.

[2]

Counsel have been very helpful in their submissions on this difficult
    case. The 17-year-old appellant, who had no prior criminal record, committed a
    very serious offence. He gained access to an apartment building lobby, pursued
    the 13-year-old complainant, a complete stranger, grabbed her, groped her
    between her legs and grabbed her breasts. He continued the assault
    notwithstanding the complainants screams and attempts to get away.

[3]

Extensive material was placed before the trial judge to assist him with
    sentencing the appellant. Because of his very unfortunate antecedents detailed
    in the pre-sentence report, the Gladue report and the reports of Dr. Chretien
    and Dr. Dickey, the appellant presents as a high risk to re-offend generally
    and to re-offend sexually. He suffers from a relatively severe conduct disorder
    that could lead to Antisocial Personality Disorder as an adult. He may well
    suffer from a deviant sexual preference which would cause additional serious
    concern. Due to his intellectual limitations, effective treatment is
    problematic. The evidence strongly supported the view that the appellant
    required residence in a structured living situation.

[4]

The two principal issues raised by appellants counsel are the lack of
    credit for pre-sentence custody and the imposition of a sentence that does not
    accord with s. 38 of the
Youth Criminal Justice Act
, S.C. 2002., c. 1
.

[5]

As to the pre-sentence custody, we agree that it would have been helpful
    if the trial judge had explicitly dealt with the issue. That said, we are
    satisfied that this is one of those exceptional cases, as discussed in
R.
    v. E.L.
(2006)
, 210 O.A.C.
    124 (C.A.), and
R. v. N.W.P.
, 2008 MBCA 101, 231 Man. R. (2d) 61, in
    which it was open to the trial judge to not give any credit for pre-sentence
    custody. The lengthy comments by the trial judge in his dialogue with counsel
    and his reasons on March 6, 2013 explain why the maximum disposition was
    required, in this unusual case, to protect the public through rehabilitative
    measures in a highly structured setting.

[6]

We are also satisfied that the disposition is consistent with s. 38 of
    the Act. Counsel submits that the trial judges candid observation about the
    difficulty in holding this appellant accountable shows that the custodial
    portion of the sentence was imposed solely for the purpose of incapacitation.
    We do not agree for the following reasons. The trial judge explicitly stated
    that he was not imposing sentence for the purpose of incapacitation or general
    deterrence. It is clear that the trial judge was rightly concerned that if the
    appellant did not get proper treatment a time would come when a sentence would
    have to be imposed to segregate the appellant from society. However, that was a
    matter that would occur only if the appellant was sentenced in the future as an
    adult for new serious offences.

[7]

The trial judge made it abundantly clear that the disposition he was
    considering was for purposes of rehabilitation. His comments about protection
    of the public must be seen in that context.

[8]

Section 38(1) of the Act provides that the purpose of youth sentencing
    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. In the course of his
    reasons on March 6, the trial judge made some very strong comments about accountability,
    at one point stating that holding him accountable in the context of this
    particular case is nonsense. Counsel submits that accordingly the trial judge
    must have imposed the custodial sentence for reasons other than accountability.
    When the reasons are read as a whole it is apparent that the trial judges
    comments were rooted in the appellants intellectual limitations and the
    impulsiveness of the act. The sentence imposed did attempt to hold the
    appellant accountable for his actions in the sense discussed in
R. v.
    B.W.P.; R. v. B.V.N.
,

2006
    SCC 27, [2006] 1 S.C.R. 941, at para. 33, to the extent possible, given the
    appellants limitations. It is doubtful that any lesser disposition would have been
    effective in holding the appellant accountable while at the same time promoting
    his rehabilitation and reintegration into society as required by s. 38(1) of
    the Act.

[9]

The appellant also submits that the trial judge erred in principle in
    failing to consider alternatives such as a group home or custody at the Syl
    Apps facility. However, the trial judge did consider these alternatives and
    rejected them for cogent reasons. The group home option would not be sufficient
    after the appellant turned 18, which was to occur shortly. As to Syl Apps, the
    sentencing had already been adjourned once to get more information. Through his
    counsel, the appellant opposed a further adjournment and provided reasons why
    the Hope Manor facility was preferable.

[10]

Accordingly,
    while leave to appeal is granted, the appeal from sentence is dismissed.

M.
    Rosenberg J.A.

P.S.
    Rouleau J.A.

"G.J.
    Epstein J.A."


