



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    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)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    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)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. R.S., 2022 ONCA 123

DATE: 20220214

DOCKET: C69889

Miller,
    Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

R.S., acting in person

Breanna Vandebeek, appearing as duty counsel

Nicole Rivers, for the respondent

Heard: February 7, 2022 by
    videoconference

On appeal from
    the disposition imposed on August 17, 2021 by Justice Larry B. OBrien of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial, R.S. was found guilty of two counts
    of sexual assault. He was sentenced to an 18-month custody and supervision order,
    comprised of 12 months in open custody, followed by six months of custody and supervision.
    He was also made subject to a 12-month probation order. R.S. appeals this
    disposition.

[2]

R.S. was 14-15 years old at the time of the
    offences. Both victims were his former intimate partners. With respect to the
    victim, M.J., in the course of consensual vaginal intercourse, R.S. penetrated
    her anally without her consent. This caused her to jump out of the bed. When
    she returned, R.S. engaged in another brief bout of anal intercourse. M.J. was
    15 years old at the time.

[3]

There were three incidents in relation to the
    other victim, E.H. On the first occasion, they were at a movie theatre. R.S.
    touched E.H. between her legs without her consent. He then forced her hand down
    his pants, onto his penis. During the second incident, after consensual
    kissing, R.S. forced oral sex on E.H. and then made her perform oral sex on
    him. R.S. then forced his penis with a condom into E.H.s anus, causing her
    pain and to jump off the bed. Once she returned, he did the same thing again.
    On the third occasion, R.S. had forced vaginal intercourse with E.H.; he
    stopped when he noticed that she was bleeding. E.H. was 14 at the time.

[4]

R.S. advanced three grounds of appeal against
    his sentence.

[5]

First, R.S. submits that the youth court justice
    erred in finding that a deferred custody and supervision order was not
    available in the circumstances. Section 42(5) of the
Youth Criminal Justice
    Act
, S.C. 2002, c. 1 provides that a deferred custody and supervision
    order is available if the young person is found guilty of an offence other
    than one in the commission of which a young person causes or attempts to cause
    serious bodily harm. The Crown and defence counsel at trial agreed that this
    disposition was not available. However, it is unclear whether they agreed that
    a deferred custody and supervision order is never available in the context of a
    sexual assault, or whether they were in agreement that it was not available on
    the facts as found by the youth justice court judge. Duty counsel also submits
    that the youth justice court judge was required to explain how he reached his
    conclusion that serious bodily harm was caused or attempted. Moreover, she
    submits that, because no evidence was called on this issue, the youth justice
    court judge must have improperly taken judicial notice of this fact.

[6]

This ground of appeal can be decided on the basis
    that there was evidence before the trial judge that allowed him to make the
    finding that s. 42(5)(a) precluded the imposition of a deferred custody and
    supervision order. The evidence of the victims at trial and the victim impact statement
    written by E.H. provided ample support for the conclusion that R.S.s actions
    caused the victims serious psychological harm.

[7]

R.S. further submits that the sentence was
    unduly harsh. We do not accept this submission. The youth justice court judge carefully
    considered all of the aggravating and mitigating factors. R.S.s conduct was
    very serious, involving two victims and multiple incidents, including vaginal
    and anal penetration. In relation to E.H., he only stopped after noticing that
    she was bleeding. These offences had a profound impact on both young victims.

[8]

The youth justice court judge took into account
    the mitigating factors, including R.S.s age and his lack of a prior youth
    justice court record. He characterized the pre-sentence report as relatively
    positive. Although the report underscored R.S.s considerable rehabilitative
    potential, it also reflected a lack of empathy for his victims.

[9]

In all of the circumstances, it cannot be said
    that the disposition crafted by the youth justice court judge was unfit.

[10]

Lastly, R.S. relies on fresh evidence that
    details his progress while subject to the open custody and supervision order. The
    Crown does not oppose the admission of this evidence; however, she submits that
    the evidence merely confirms what was established at the disposition hearing 
    R.S. has excellent rehabilitative potential. It also demonstrates that R.S. is
    a low risk to re-offend.

[11]

We commend R.S. for his commitment to a good
    deal of the programming offered to him while subject to his current
    disposition. We also note his very positive scholastic achievements to date. It
    would appear that R.S. is on the right path and we encourage him to continue
    these efforts. However, this updated information does not impact the fitness of
    the disposition that was imposed.


[12]

Leave to appeal is granted, but the appeal is
    dismissed.

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B. Zarnett
    J.A.


