Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code and s. 110(1) of the YCJA directing that any information identifying the complainant or the young person shall not be published. Court of Appeal for Saskatchewan Docket: CACR2813 Citation: P.R., 2018 SKCA 27 Date: 2018-04-06 And Her Majesty the Queen Before: Richards C.J.S., Herauf and Schwann JJ.A. Disposition: Sentence appeal allowed; conviction appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On Appeal From: Provincial Court, Beauval and Meadow Lake Appeal Heard: December 4, 2017 Counsel: Kathy L. Hodgson-Smith for the Appellant Beverly L. Klatt for the Respondent Alan G. McIntyre, Q.C. for Trial Counsel Herauf J.A. I. Introduction [1] The appellant was convicted after trial of sexually assaulting his 11-year-old niece contrary to s. 271 of the Criminal Code, RSC 1985, C-46. The appellant was 17 years old at the time of the offence and was sentenced as youth under the Youth Criminal Justice Act, SC 2002, [YCJA]. The appellant was sentenced to an 18-month custody and supervision order: 12 months to be served in secured custody, followed by months of community supervision. [2] The appellant appeals both his conviction and sentence. The appellant contends the trial judge made errors in assessing the credibility of the witnesses and that he received ineffective trial representation. The appellant also submits the sentence is unfit as it contradicts the principles, purpose and provisions of the YCJA, which support imposing non-custodial sentences for youth offenders. [3] For reasons on which I will elaborate, the conviction appeal is dismissed. The sentence appeal is allowed and the sentence imposed is varied to 12 months of probation. II. BACKGROUND of proceedings [4] Due to the significant length of time it took to conclude the proceedings for this offence, brief overview of the timeline is necessary. [5] The incident that gave rise to the charges against the appellant occurred on or about November 25, 2012. The appellant was released on conditions on November 28, 2012, made his first appearance in court on January 16, 2013, and entered not-guilty plea on March 20, 2013. [6] The trial commenced on August 21, 2013, in Beauval, Saskatchewan. The Crown called the complainant and the complainant’s former babysitter to testify. After the Crown closed its case, the trial was adjourned to December 18, 2013, for defence to call evidence. [7] Unfortunately, and unexpectedly, the trial judge passed away on December 19, 2013. mistrial was entered on January 14, 2014, and new trial was ordered for April 8, 2014. [8] The Crown was unavailable on April 8, 2014, and the trial was rescheduled for May 6, 2014. On May 6, 2014, the appellant failed to appear in court. On May 21, 2014, the appellant appeared without counsel and the matter was rescheduled for June 18, 2014, to allow the appellant to obtain counsel. [9] On June 18, 2014, the appellant appeared with temporary legal representative, who requested an adjournment. The adjournment was granted and the second trial was scheduled for February 18, 2015. The appellant retained different Legal Aid lawyer to represent him at the second trial, who then requested an adjournment to March 3, 2015. [10] On March 3, 2015, the Crown applied to have the complainant testify from soft room. This required change of venue from Beauval to Meadow Lake, which delayed the proceedings until March 20, 2015. [11] The second trial took place on March 20, 2015, in Meadow Lake. At the second trial, the Crown called the complainant, the complainant’s former babysitter and the complainant’s mother as witnesses. The defence called the appellant, his brother and his sister. The trial concluded that same day and the trial judge reserved his decision. [12] On June 2, 2015, the trial judge convicted the appellant of sexual assault. As the Crown was seeking custodial sentence, pre-sentence report was ordered as mandated by s. 39(6) of the YCJA. Sentencing submissions were adjourned pending the completion of the report. On August 4, 2015, the parties were ready to make submissions but the pre-sentence report was not completed. Submissions were adjourned to November 3, 2015. [13] The appellant retained new Legal Aid representation for the sentencing hearing. The sentencing submissions were adjourned three times (November 3, 2015, January 5, 2016, and March 1, 2016) on the request of both the Crown and defence. Submissions were made on May 3, 2016, after which the judge reserved his decision. [14] Nearly four years after the offence occurred, the appellant received his sentence. On June 7, 2016, the appellant was sentenced to an 18-month custody and supervision order. [15] The appellant appealed his conviction and sentence to this Court on June 24, 2016. The appellant was released on conditions pending the disposition of the appeal. His appeal was heard by this Court on December 4, 2017, which was over five years from the date of the offence. III. The Trial Decision A. The evidence at the second trial 1. The complainant’s testimony [16] The complainant testified that she and the appellant walked to the appellant’s house, sat on the couch in the living room for 15 minutes, and then the appellant told her to go into another room. Once in the bedroom, the appellant asked her to lie down with him and he had sexual intercourse with her. The complainant testified that she did not want to have sexual intercourse with the appellant. [17] The complainant also gave evidence that the appellant’s brother and sister were home at the relevant time and the brother was on the computer in the living room. Once she left the appellant’s house, the complainant contacted her former babysitter and told her what had occurred. The former babysitter then told the complainant’s mother, and the complainant’s mother and the complainant went to the police. 2. The former babysitter’s testimony [18] The former babysitter testified that the complainant contacted her about the sexual assault the night of the offence and, when the complainant spoke with her, she was crying and emotional. She testified she later contacted the complainant’s mother while the complainant’s mother was at work to tell her about the sexual assault. 3. The mother’s testimony [19] The complainant’s mother testified that she had become aware of the incident when she received telephone call from the complaint’s former babysitter while at work. She then left work and took her daughter to the police. She testified that her daughter was very scared and emotional. 4. The appellant’s testimony [20] The appellant testified that the complainant approached him on the street asking to use his bathroom and looking for cigarette. She came into his house, used the bathroom, sat down on the couch in the living room and left ten minutes later. The appellant testified that his brother was in the living room on the computer while the complainant was at the house. He denied taking the complainant to the bedroom and denied having sexual intercourse with her. 5. The brother’s testimony [21] The appellant’s brother testified that he was at home on the computer and watching television in the living room when the complainant was at the house. He testified that the complainant sat down on the couch, used the washroom, and left five or ten minutes later. The brother testified that, aside from using the washroom, the complainant stayed in the living room for the duration of her stay and that he never saw her go into the appellant’s bedroom. 6. The sister’s testimony [22] The appellant’s sister testified that she was home at the relevant time but was in and out of her bedroom and was sleeping part of the time. She testified that her bedroom did not have door and when she came out of her bedroom to get drink, she saw the complainant on the couch in the living room, her brother on the computer in the living room, and the appellant on the telephone. She testified that the complainant was there for five to ten minutes. B. Conviction and sentence [23] The trial judge accepted the complainant’s evidence and made the following findings of fact: (i) the appellant and the complainant were at the appellant’s house; (ii) the appellant asked the complainant to join him in his bedroom; and (iii) after talking for while in the bedroom, the parties had sexual intercourse. [24] The trial judge found the appellant’s testimony was complete denial of the events and determined his evidence did not raise reasonable doubt as to whether the sexual assault occurred based on his findings of fact from the complainant’s evidence pursuant to the credibility procedure articulated in W.(D.), 1991 CanLII 93 (SCC), [1991] [25] The trial judge rejected most of the siblings’ testimony. He concluded they were both distracted while the complainant was at the house and therefore were unable to observe the complainant the entire time. The trial judge expressed concern with the reliability of the siblings’ evidence due to their relationship with the appellant, finding this put them in difficult and biased position: ... But although [H.] and [J.] both testify that the complainant complainant was never in the accused’s bedroom. find that that first of all, both individuals are are in difficult position and are biased with the accused being their brother. Secondly, [J.] was in and out in and out of her bedroom while the complainant was there, so couldn’t have seen the complainant for the entire time. As for [H.], he was on the computer watching TV, so his attention was also not on the complainant at all times. (Transcript at T140) [26] Based on his assessment of credibility, his weighing of the evidence, and his findings of fact, the trial judge convicted the appellant of sexual assault. [27] The trial judge recognized the restrictions on imposing custodial sentence unless the gateway to custody was open pursuant to s. 39(1) of the YCJA. The trial judge concluded the option of custodial sentence was open in this case because the sexual assault caused the complainant serious bodily harm and constituted violent offence pursuant to s. 39(1)(a) of the YCJA. [28] After determining the custodial sentence was possibility, the trial judge considered whether there was non-custodial sentencing alternative that would fulfill the principles and purposes of sentencing contained in s. 38 of the YCJA. [29] Upon considering the circumstances of the appellant, sentences imposed in similar circumstances, and the likelihood of the appellant’s compliance with non-custodial sentence, the sentencing judge concluded: It is more likely than not that the accused would comply with the condition conditions of non-custodial sentence. However, find that given the seriousness of the offence and the fact that that denunciation and deterrence must take paramountcy, that given the degree of responsibility of the accused in this case, that there are no alternatives to custody that are reasonable in the circumstances. (T175, emphasis added) [30] Upon determining the principles of denunciation and deterrence were paramount sentencing principles in the circumstances, the trial judge sentenced the appellant to an 18-month custody and supervision order: 12 months to be served in closed custody followed by months of community supervision. [31] The appellant’s appeal raises the following issues: (a) Did the appellant receive ineffective legal representation at the second trial? (b) Did the trial judge err in his credibility assessment? (c) In sentencing the appellant, did the trial judge err in his consideration and application of the relevant principles and purposes of sentencing under the YCJA? V. Analysis A. Fresh evidence application [32] In support of his conviction appeal, the appellant made fresh evidence application. The appellant applied to admit into evidence the transcript from the first trial and an affidavit of the appellant, which outlines discussions between the appellant and his counsel prior to and during the second trial. Attached as exhibits to the appellant’s affidavit is copy of the complainant’s statements to the police taken on November 29, 2012, and December 22, 2012. [33] As this evidence was not before the trial judge, the evidence must meet the criteria for the admission of fresh evidence as set forth in Palmer (1979), 1979 CanLII (SCC), [1980] SCR 759 at 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief; and, (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [34] The nature of the evidence the appellant seeks to introduce relates to his allegation of incompetent counsel. Therefore, the threshold criteria articulated in Worm, 2014 SKCA 94 (CanLII), 442 Sask 228, applies: [111] In R. v. S.G.T., Wilkinson J. (ad hoc) noted that threshold criterion for the admission of fresh evidence in cases where trial fairness is at issue due to allegations of incompetent counsel is that the new information must be clear and convincing, otherwise it will not be admitted. She said this is because, in cases like this, the usual criteria for the admission of fresh evidence set forth in cases such as R. v. Palmer (1979), 1979 CanLII (SCC), [1980] S.C.R. 759, fall to the broader concerns of trial fairness, regularity of the trial process and avoidance of miscarriages of justice. [35] The transcripts from the first trial are necessary to review the allegations that the appellant’s trial counsel at the second trial failed to cross-examine Crown witnesses on perceived material inconsistencies between their testimony and their evidence given at the first trial. They are relevant to the allegation of incompetent trial counsel claim and to ensure this Court has the complete record for which to assess the merits of the allegation. [36] Similarly, the affidavit and the exhibited police statements are relevant to the appeal. The Crown did not object to the admission of the affidavit of the appellant, which included the statements of the complainant to the police exhibited to the affidavit. Counsel for the former trial counsel took no position. [37] conclude the evidence satisfies the threshold for admission as set out in Worm and grant the appellant’s fresh evidence application. The fresh evidence will be considered as it relates to the conviction appeal. B. Incompetent trial counsel claim [38] The appellant submits he received ineffective legal representation at his second trial and alleges his counsel failed to cross-examine the complainant on her many inconsistent statements. The appellant submits this failure resulted in the trial judge making erroneous credibility assessments that, given the importance of credibility to the conviction, puts the reliability of the verdict into question. [39] The evidentiary onus on an appellant alleging incompetent counsel was outlined in Short, 2012 SKCA 85 (CanLII) at para 5, 399 Sask 192: ... First, the appellant must establish the facts, including the acts or omissions of trial counsel, upon which the claim of incompetence is based. Second, the appellant must establish that the representation provided by trial counsel was incompetent. Third, the appellant must establish that the incompetent representation resulted in miscarriage of justice. [40] Trial counsel’s conduct is subject to strong presumption of competence: G.D.B., 2000 SCC 22 (CanLII), [2000] SCR 520; Kim, 2011 SKCA 74 (CanLII) at para 36, 375 Sask 68, leave to appeal to SCC dismissed, [2012] SCR ix. The presumption of competence is only displaced if the appellant can prove, on balance of probabilities, that trial counsel’s acts or omissions fell outside the range of “reasonable professional assistance”: Short at para 6. [41] The reasonableness standard of assessment necessarily protects wide range of professional legal assistance, as no two lawyers will defend an accused in exactly the same way. The benefit of hindsight, or an argument that another counsel would have acted differently in the circumstances, has no place in an appellate court’s assessment of whether trial counsel acted competently: Short at para 6. Lawyers must be given latitude to utilize trial strategies to address the diverse legal, factual and procedural circumstances that arise in each case. [42] The appellant has the onus of establishing that his counsel’s professional judgment was unreasonable in the circumstances and that this unreasonable professional judgment caused miscarriage of justice: G.D.B. at para 27. While the appellant has identified certain inconsistent statements in respect of which his counsel did not cross-examine the complainant, he has failed to establish these omissions amount to unreasonable professional judgment that reach the threshold of incompetence. [43] The art of cross-examination necessarily includes an element of trial strategy. Upon review of the circumstances in this case, am of the opinion it is reasonable to assume counsel’s decision to not cross-examine the complainant on certain inconsistencies was tactical decision. The complainant was very young at the time of the sexual assault and, at both trials, and it was obvious she was having difficulty expressing herself, seeking the protection of soft room at the second trial. It is appropriate to conclude counsel was aware of the clear, coherent and detailed statements the complainant had provided to the police shortly after the offence and that he strategically determined it was not beneficial to his client’s position to highlight those statements by raising certain inconsistencies between them and the testimony of the complainant. [44] Given the circumstances of the case, counsel had to determine whether certain lines of questioning would be beneficial or prejudicial to his client’s case. am of the opinion counsel’s approach to cross-examination in this case does not merit finding of incompetent trial counsel pursuant to G.D.B. and Short. Therefore, this ground of appeal must be dismissed. C. Alleged error in credibility assessment [45] The appellant submits the trial judge erred in his assessment of the credibility of the witnesses, namely, the complainant’s former babysitter and the appellant’s siblings. The appellant alleges this error resulted in an unreasonable verdict. [46] The appellant argues the trial judge erred in rejecting the sister’s evidence because even though she was distracted at the house, her evidence was both credible and vital to determining the guilt of the appellant. The appellant submits the trial judge erred in not accepting parts of the sister’s testimony, including the timeframe the complainant was in the house. [47] The appellant contends the brother’s evidence was the most reliable since he was in the living room and observed the complainant for the duration of her time at the house. Given the relevance of the brother’s evidence, the appellant submits it was an error to reject the entirety of that evidence on the basis of his familial relations to the appellant and potential bias. [48] The appellant also submits it was an error for the trial judge to accept and rely upon the evidence of the former babysitter because she changed her evidence between the two trials. The appellant submits the former babysitter testified at the first trial that the complainant contacted her the day after the offence, whereas at the second trial she testified the complainant contacted her the day of the offence. The appellant submits the former babysitter was an incredible witness and therefore her evidence should not have been relied upon. [49] It is well understood that an appellate court must show “great deference” to a trial judge’s assessment of witness credibility: W.(R.), 1992 CanLII 56 (SCC), [1992] SCR 122 at 131; François, 1994 CanLII 52 (SCC), [1994] SCR 827; Baxter, 2013 SKCA 52 (CanLII) at para 46, 414 Sask 184. Where an unreasonable verdict is alleged and the verdict is based on credibility assessment, an appellate court may only interfere if the verdict “cannot be supported on any reasonable view of the evidence”: Frances, 2017 SKCA 109 (CanLII) at para 3; Burke, 1996 CanLII 229 (SCC), [1996] SCR 474 at para 7; R.P., 2012 SCC 22 (CanLII) at para 10, [2012] [50] The verdict in this case came down to question of credibility. The trial judge correctly identified R v W.(D.), as the guiding legal principle in such circumstances. [51] The trial judge considered the evidence of the witnesses. He rejected the evidence of the siblings that the complainant was only at the house for five or ten minutes and that she never went into the bedroom. The trial judge gave reasons for rejecting these aspects of their testimony, namely that both siblings had been distracted while the complainant was at the house and that their relationship to the accused weakened the credibility of their testimony. [52] The trial judge made no specific findings of fact related to reliability or credibility of the former babysitter. It does not appear the trial judge relied on her testimony in any significant way, other than to say the complainant’s condition when she told the former babysitter was “consistent with someone having experienced this type of event” (at T140). am not convinced this reference had significant impact on the trial judge’s determination of the appellant’s guilt as the basis of the conviction stems from the trial judge’s findings of fact based on the complainant’s testimony. [53] The appellant has failed to convince me there is any reasonable basis upon which to question the trial judge’s credibility assessment of the former babysitter. Beyond that, am of the opinion his minimal reliance on the former babysitter’s evidence to assess the condition of the complainant after the offence had no meaningful impact on the verdict. [54] As noted, the trial judge properly instructed himself pursuant to the process outlined in W.(D.) to determine whether on the basis of the evidence that he had accepted, he was convinced beyond reasonable doubt of the appellant’s guilt. In particular, he said: Having considered all of the evidence, including that of the accused, and and as applied against the law as set out in the case of R. v. W.(D.) excuse me find as fact that on the date in question the complainant was at the accused’s residence. Furthermore, find as fact that the accused asked the complainant into his bedroom. That after they talked for while they banged. That the word banged used by the complainant means sexual intercourse for her. As for the accused’s evidence, find that it is is [sic], in fact, complete denial of the events for the date in question and does not raise reasonable doubt of the complainant’s evidence, which is, in fact, corroborated by other evidence leading up to the critical event, including the events afterwards when she’s seen leaving the house by the accused’s siblings. (T139–T140) [55] The trial judge was in the best position to assess the demeanor of the witnesses and draw conclusion on the credibility of their testimony: François at 836–837. This Court is not entitled to revisit the evidence in piecemeal fashion, deconstructing the trial judge’s findings and inferences of fact and his assessments of witness credibility. As has been observed in other appeals, it is difficult to succeed on an unreasonable verdict allegation for verdicts that rely on credibility assessments as the credibility assessment will not be deemed “unreasonable” unless it “cannot be supported on any reasonable view of the evidence” (emphasis added): Burke at para 7; R.P. at para 10; Baxter at para 46. [56] find no reversible error in the trial judge’s assessment of the credibility of the appellant’s siblings or the complainant’s former babysitter. The trial judge’s credibility findings are supportable on the evidence. The trial judge properly instructed himself pursuant to R v W.(D.) and I see no basis to interfere with the conviction. [57] Therefore, the appellant’s conviction appeal is dismissed. D. Sentence appeal [58] The appellant submits the trial judge failed to adhere to and properly apply the principles and purposes of sentencing pursuant to the YCJA. The appellant also submits these errors resulted in the trial judge imposing custodial sentence when there were reasonable non-custodial sentences available in the circumstances. The appellant contends the custodial sentence is therefore unfit and asks this Court to vary the sentence imposed. [59] Sentencing judges have wide discretion to impose sentences that are within the limits of the law. Pursuant to Lacasse, 2015 SCC 64 (CanLII), [2015] SCR 1089, an appellate court may not interfere with sentence simply because it would have imposed different sentence. The circumstances upon which an appellate court may intervene with sentence was summarized by Richards C.J.S. in L.V., 2016 SKCA 74 (CanLII), 480 Sask 181: [74] In the end, therefore, Lacasse indicates that an appellate court may substitute its own sense of an appropriate sentence for the one imposed by trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. [60] For reasons on which will elaborate, find the sentencing judge committed an error in principle when he emphasized denunciation and deterrence as the paramount sentencing objectives. This error impacted the sentence imposed and, therefore, pursuant to Lacasse, am permitted to substitute it with fit sentence. 1. Undue emphasis on deterrence and denunciation [61] The YCJA provides detailed sentencing code that dictates what principles and factors must be considered when sentencing youth offenders. The focus of sentencing under the YCJA is “balancing conflicting principles to arrive at sentence tailored to the individual circumstances”: Okemow, 2017 MBCA 59 (CanLII) at para 47. Sentencing youth pursuant to the YCJA mandates context-specific approach; an approach that differs entirely from the sentencing regime for adult offenders. [62] The sentencing principles for youth pursuant to the YCJA are enumerated in the Act’s Preamble, its Declaration of Principle in s. 3, and the detailed sentencing principles in s. 38. The constant theme woven through these provisions is that youth sentence seeks to ensure meaningful accountability through restorative sentences, as opposed to reliance on incarceration, to promote the long-term protection of the public. [63] The Preamble to the YCJA states the primary purpose of the legislation is to ensure youth criminal justice system that: ... commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. [64] This theme is reinforced in the declaratory principles found in s. 3: 3(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to protect the public by (i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [65] The principles in s. indicate that “fair and proportionate accountability” is the central principle for the sentencing of youth offenders and advocate for restorative rather than custodial sentences to achieve fair and proportionate accountability. These principles are expanded in s. 38, which enumerates the more explicit and directive sentencing purposes and principles for youth offenders: Purpose 38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold 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. Sentencing principles (2) youth justice court that imposes youth sentence on young person shall determine the sentence in accordance with the principles set out in section and the following principles: (a) the sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (e) subject to paragraph (c), the sentence must: (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (f) subject to paragraph (c), the sentence may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. (Emphasis added) [66] The use of the word “shall” in the introductory clause to s. 38(2) and the word “must” and “should” in ss. 38(2)(a) to (e) indicate that youth sentencing judges are required to impose sentence that is in accordance with the principles in s. 3, as well as the specific sentencing principles enumerated in those provisions. They remind judges to reserve the use of custodial sentence for the most serious offenders and only when non-custodial sentence would be unable to ensure meaningful accountability and promote the long-term protection of the public. [67] In comparison, the use of the word “may” in s. 38(2)(f) connotes permissive, rather than obligatory, consideration of denunciation and deterrence as sentencing objectives for youth offenders. Judges are permitted to consider the objectives of denunciation and deterrence specific deterrence only when sentencing youth, however, reliance on either is discretionary: Okemow at para 57. If denunciation and deterrence are considered, they must be considered alongside the other sentencing principles expressed in the preamble, the declaratory principles in s. 3, and the mandatory sentencing principles in s. 38. [68] It should be noted that, when first enacted in 2003, the YCJA did not include reference to denunciation and deterrence as sentencing objectives for youth. These provisions were added to the Act through amendments contained in the Safe Streets and Communities Act, SC 2012, 1, in 2012. [69] The jurisprudence prior to 2012 indicates there was subtle, but important distinction, between deterrence being an effect of youth sentences rather than primary sentencing purpose (Nicholas Bala Sanjeev Anand, Youth Criminal Justice Law, 3d ed (Toronto: Irwin Law, 2012) at 125 [Bala Anand]). This distinction corresponds with the extensive body of social science research that has concluded deterrence as sentencing objective does not effectively deter criminal behavior. [70] Prior to 2012, denunciation was considered in similar fashion as deterrence in that judges turned their mind to the concept but did not consider it primary sentencing principle. Youth sentencing judges recognized the judicial system’s role in reinforcing fundamental social values and in condemning harmful behavior and therefore, when sentencing youth, judges considered the denunciating effect the sentence should have: see M.A.H., 2006 SKCA 114 (CanLII), 285 Sask 284; S.S., 2008 ONCA 140 (CanLII), 232 CCC (3d) 158. [71] Recognizing that the concepts of deterrence and denunciation were secondary factors already considered when imposing youth sentences prior to the 2012 amendments, the addition of s. 38(2)(f) in 2012 has been observed as imposing a relatively insignificant change to the approach sentencing judges took prior to 2012. [72] The Manitoba Court of Appeal discussed the impact of the amendments in Okemow: [47] Because there is no fundamental principle in the sentencing of young persons, the effect of the 2012 amendments to the YCJA should not be overstated. The focus of sentencing under the YCJA remains about balancing conflicting principles to arrive at sentence tailored to the individualized circumstances (see (LR) (2004), 2004 NBCA 76 (CanLII), 200 C.C.C. (3d) 472 at para (NBCA); and Quebec (Minister of Justice) at para 131). To some degree, the 2012 amendments represent philosophical shift in the YCJA, but it is not tectonic one for sentencing non-violent and non-repeat offenders. The Hon Rob Nicholson, Minister of Justice and Attorney General of Canada, advised Parliament that the intent behind the 2012 amendments to the YCJA was “to strengthen its handling of violent and repeat young offenders” (House of Commons Debates, 41st Parl, 1st Sess, No 017 (21 September, 2011) at 1525). In my view, the revised wording of the YCJA still has at its core the philosophy that the custodial remedy is last-resort option (see section 39(2) of the YCJA), reserved for discrete type of offender and, when used, it must be for the shortest duration possible in the circumstances. (Emphasis added) [73] The Manitoba Court of Appeal in Okemow highlighted the discretionary nature of deterrence and denunciation as sentencing considerations and cautioned against an over-reliance on those objectives in sentencing youth: [69] In some cases, where there is not diminished moral blameworthiness, due to the serious nature of the offence or the lengthy criminal history of the young person, it may be very difficult for the youth justice court judge to impose proportionate sentence without giving appropriate weight to the objectives of denunciation and/or specific deterrence. This new feature of the YCJA must, however, be understood properly in its limited context and applied cautiously in practice. Parliament has not called for increasing the rate of incarceration of young persons or changing its approach to sentencing for the vast majority of young persons who fall into trouble with the law. Rather, it has built measures into the YCJA to address deficiencies in the process that it perceived existed in relation to small but important subset of offenders, those committing serious crimes or serial offenders, where the presumption of diminished moral blameworthiness is rebutted in relation to the particular offence(s). This is entirely in keeping with this aspect of the preamble of the YCJA. (Italics emphasis added, underline emphasis in original) [74] According to Bala & Anand: “the 2012 amendments add specific deterrence and denunciation as sentencing factors for youth offenders, but these factors are to be considered in a fashion consistent with the principle of ‘diminished moral blameworthiness’ in section 3, and hence are of lesser importance than they are for adults” (at 128). [75] In my view, the YCJA establishes sentencing philosophy that promotes meaningful consequences and ensures accountability through rehabilitation and reintegration methods, as opposed to focusing on denunciation and deterrence to impose custodial sentences. Although denunciation and deterrence may be considered in determining the appropriate sentence for youth offender, they must not be the sole objectives considered and they must not take paramountcy over the other sentencing principles contained in the YCJA. [76] In this case, it is clear the sentencing judge considered the objectives of denunciation and deterrence to be the paramount sentencing considerations. This undue emphasis resulted in the sentencing judge failing to give proper consideration to the other, mandatory, sentencing principles contained in the YCJA. The sentencing judge failed to adhere to the sentencing directions contained in the YCJA and this represents an error in principle. 2. fit sentence [77] Due to the conclusion that the sentencing judge committed an error in principle that impacted the sentence imposed, this Court is permitted to determine fit sentence for the appellant in the circumstances. [78] This was major sexual assault that included sexual intercourse. The victim was 11 years old and was the appellant’s niece. The sexual assault caused the victim serious psychological harm. Generally speaking, major sexual assaults such as this merit custodial sentence in order to reflect the seriousness of the offence and to hold the youth accountable, unless there are unique circumstances that dictate non-custodial sentence is reasonable in the circumstances: see C.(V.I.) (2005), 2005 SKCA 95 (CanLII), 269 Sask 131 (CA).; C.S.U., 2006 SKCA 120 (CanLII), 289 Sask 28; J.A.H., 2016 MBCA 58 (CanLII), 330 Man (2d) 93; A.(J.), 2012 ONCJ 544 (CanLII); S.(C.), 2013 ONCJ 289 (CanLII); H.(D.), 2014 ONCJ 254 (CanLII); S.S.; N.C., 2015 SKPC 79 (CanLII), 474 Sask 299. [79] The facts surrounding this offence are extremely troubling and, at first blush, could lead one to conclude custodial sentence is the only fit sentence. However, am of the opinion the significant delay in concluding this case and the appellant’s positive lifestyle choices since the offence dictate that the appropriate sentence is 12-month probation order. As well, probationary sentence will better serve the long-term protection of the public and will promote the rehabilitation and reintegration of the appellant. 3. The principle of timely justice [80] As discussed above, the duration of time it took to conclude this case is significant. The sexual assault occurred on or about November 25, 2012. The appellant was found guilty after trial on March 20, 2015. The appellant was sentenced on June 7, 2016, nearly four years after the offence occurred. [81] The concept of timely justice is fundamental principle in our criminal justice system and one that holds special importance for adolescents. Not only are youth offenders entitled to the right to be tried within reasonable time enshrined in s. 11(b) of the Charter, the YCJA dictates timely justice when dealing with youth offenders. [82] Section of YCJA specifically enumerates the importance of timely justice in the declaratory principles provision: 3(1) The following principles apply in this Act: (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (Emphasis added) [83] The codification of the principle of timely justice in the YCJA is premised on the knowledge that time holds special relevance to young people and that this demands promptness from the criminal justice system. To ensure youth is held accountable through meaningful sanctions and to ensure the principles of the YCJA are upheld, proceedings under the YCJA must be conducted promptly: Okemow at para 145; M.(G.C.) (1991), 1991 CanLII 7057 (ON CA), 65 CCC (3d) 232 (Ont CA) at para 16; Bala Anand at 144. [84] Adolescents perceive time differently than adults and the passage of time has greater impact on young persons. In addition, adolescents have less-developed memories. Therefore, to ensure young person understands the relationship between his or her behavior and the consequences that flow from it, sanctions must be imposed promptly following the offending behavior. [85] The Ontario Court of Appeal discussed the importance of conducting youth proceedings promptly in M.(G.C) at 240: ... Delay, which may be reasonable in the adult criminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They include the well-established fact that the ability of young person to appreciate the connection between behaviour and its consequences is less developed than an adult’s. For young persons, the effect of time may be distorted. If treatment is required and is to be made part of the Young Offenders Act disposition process, it is best begun with as little delay as is possible. [86] Although this case dealt with the Young Offenders Act, RSC 1985, Y-1 (repealed), the predecessor to the YCJA, the fundamental principle of timely justice for youths remains applicable and arguably is of increased importance given the specific enumeration of the principle of timely justice in ss. 3(b)(iv) and (v) of the YCJA: T.R. (2005), 2005 CanLII 18709 (ON CA), 197 CCC (3d) 14 (Ont CA). [87] In the appellant’s circumstances, there was delay of three years and seven months from the commission of the offence to the time of sentencing. There has been an additional delay of almost two years pending appeal. While recognize some of the delay was due to unforeseen and uncontrollable variables, the significant passage of time to conclude these proceedings cannot be ignored. As per S.S., the substantial period of time between the offence and the appeal is an important consideration when an appellate court is asked to consider the present fitness of sentence (at para 49). [88] As discussed above, the purpose of the YCJA is to promote the long-term protection of the public by imposing meaningful consequences, with view to rehabilitating and reintegrating the youth offender. The YCJA’s goal of imposing meaningful consequences that ensure sense of accountability in the youth is best achieved when the consequences occur within relatively short time from the commission of the offence. [89] I am of the view that, considering the significant passage of time, imposing a custodial sentence would be contrary to the purposes of the YCJA as it is contrary to the long-term protection of the public given that it is unlikely to promote, and may in fact impede, the appellant’s rehabilitation and reintegration into society. [90] In B.S., 2017 MBCA 102 (CanLII), the Manitoba Court of Appeal varied youth’s custodial sentence for major sexual assault to period of probation. The youth had been sentenced to six months of deferred custody and supervision followed by twelve months of probation. The Court of Appeal determined the sentence was illegal as the offence caused “serious bodily harm”, therefore deferred custody and supervision order was precluded by law pursuant to s. 42(5). [91] In its analysis of the fit sentence, the Court of Appeal noted that given the seriousness of the offence, the statutory preclusion of deferred custody and supervision order makes custody and supervision order the only realistic sentence “absent exceptional circumstances” (at para 10). The Court noted that five-month custody and supervision order would have been the fit sentence at the time of sentencing, however the circumstances of this youth at the time of the appeal qualified as exceptional and dictated period of probation as the appropriate sentence. The exceptional circumstances guiding the Manitoba Court of Appeal to this conclusion were the two-year delay between the offence and the disposition of the appeal, the youth’s adherence to release conditions for two months, the two-and-a-half months he served on his deferred custody and supervision sentence before the sentence was stayed pending appeal, and the fact “the Crown took no position as to whether the young person’s sentence should be stayed in light of these circumstances” (at para 13). [92] The Manitoba Court of Appeal concluded that “placing the young person in custody would not be in the interests of justice” (at para 14). The court varied the deferred custody and supervision order to five-month custody and supervision order, but stayed the custody and supervision order, leaving the youth to serve 12 months of probation as his sentence (para 15). [93] This case is instructive and helpful when considering the appropriate sentence to impose for the appellant in the circumstances before us. This was major sexual assault, which merits meaningful and proportionate sentence to hold the appellant accountable for his actions. While conclude major sexual assaults should generally attract custodial sentence, the unique circumstances of this case, including the significant delay, the appellant’s age at the time of sentencing, his good conduct since the offence, and his compliance with release conditions, have convinced me that the principles and objectives of sentencing pursuant to the YCJA are more meaningfully achieved through the imposition of non-custodial sentence. [94] The appellant was 17 years old at the time of the offence, 20 years old at the time of sentencing, and 22 years old at the time of the appeal. The appellant turned 20 years old while awaiting the disposition of his sentence. As was the case in J.B. and S.S., the appellant would now be required to serve custodial sentence in an adult facility pursuant to s. 89(1) of the YCJA. 22 year old is different person than 17 year old: S.S. at para 54. [95] agree with the premise that significant delay between the commission of the offence and the time of an appeal is worthy consideration when determining the fitness of sentence for youth offender. In particular, the impact of sending youth offender to an adult facility due to lengthy delay caused by the justice system is factor an appellate court must consider when determining the fit sentence for youth. [96] Since the commission of the offence, the appellant has made positive lifestyle choices while on release. He has maintained steady employment and has been attending Northlands College with near perfect attendance record. He has applied to continue his education in trades program after completion of his GED. His employers speak highly of him and he has good family support. He is the father of four-year-old daughter for whom he provides financial support and child care to enable the mother to attend school. [97] At the time of sentencing, the accused had no prior criminal record and the sentencing judge made note of the fact that in the nearly three-and-a-half-years since the commission of the offence, the appellant did not incur any new criminal charges. The only major risk concern identified in the appellant’s pre-sentence report was lack of leisure/recreation activities but on appeal he discussed his many recreational interests including playing sports with friends and fishing with his mother. [98] The appellant’s positive conduct in the community since the commission of the offence promotes confidence that his rehabilitation and reintegration into society will endure if he is permitted to remain in the community. In comparison, sending the appellant to an adult correctional facility would most likely hinder his rehabilitation and reintegration, as it would expose him to different social network and remove him from the stability and support of his family. [99] The benefit of non-custodial sentence to facilitate the continued rehabilitation of youth offender was discussed in N.C. and find it aptly applies in these circumstances: [20] The goal of sentencing under the YCJA is to ensure the long-term protection of the public. If N.C. is taken away from his family and placed in secure custody facility, he is going to meet new friends who are at much higher risk than he. He may learn things there he would be better off not knowing. He is likely to come out higher risk to commit all kinds of offences. This would reduce public safety, not enhance it. rehabilitative sentence is the most likely to ensure the long-term protection of the public. find the best way to rehabilitate N.C. is to allow him to remain in the community and take appropriate treatment and education. [100] further consideration to determine the appropriate sentence is the fact the appellant’s liberty interests have been constrained for lengthy period of time. The delay in this case has resulted in the appellant being on release conditions for nearly five years. In addition to the release conditions pending trial, the appellant was released on judicial interim release conditions pending the disposition of this appeal, to which he has fully complied. [101] The lapse of nearly four years between the offence and sentencing contradicts the principles that youth intervention should be timely and prompt pursuant to ss. 3(1)(b)(iv) and (v) of the YJCA. A custodial sentence at this point, five years after the offence occurred, would not serve the objectives and principles of the YCJA, including “timely intervention”, compliance with youth’s “perception of time” and imposing meaningful sanctions that promote rehabilitation and reintegration. [102] Upon consideration of the appellant’s positive conduct in the community since the offence, the restriction on his liberty since 2012, and the fact he would be required to serve custodial sentence in an adult facility, am of the view the principles of sentencing in the YCJA are best fulfilled at this juncture by period of probation. [103] emphasize the Court’s recognition and denunciation of this extremely serious offence. reinforce that offences of this nature generally merit custodial sentence to hold the offender accountable and to provide meaningful consequences for the criminal conduct. However, exceptional circumstances must be taken into consideration when they arise. Courts cannot lose sight of the fact that sentencing youth offenders pursuant to the YCJA is contextualized process and mandates unique lens in which to assess the fitness of sentence. [104] Therefore, I conclude the objectives and principles of the YCJA are best fulfilled by a sentence of 12 months of probation. would invite counsel to file written submissions as to the appropriate conditions within the two weeks from the date of this judgment. Conclusion [105] In the result, the conviction appeal is dismissed. Leave to appeal the sentence is granted and the 18-month custody and supervision order is varied to a probationary term of 12 months. “Herauf J.A.” Herauf J.A. concur. “Richards C.J.S.” Richards C.J.S. concur. “Schwann J.A.” Schwann J.A.
HELD: The appeal from conviction was dismissed and sentence appeal allowed. The sentence was varied to 12 months of probation. The court found with respect to each issue that: 1) the presumption of competent trial representation had not been displaced. The trial lawyer’s decision not to cross-examine the complainant was a tactical one. She was very young and had difficulty expressing herself in the courtroom whereas she had given clear, coherent statements to the police shortly after the offence. The lawyer determined that it was not beneficial to the appellant’s position to highlight those statements by raising certain inconsistences between them and the complainant’s testimony;  2) the trial judge’s assessment of credibility was entitled to deference. He correctly identified R v W.(D.) as the guiding legal principle in the circumstances and his credibility findings were supportable on the evidence; and 3) the sentence was unfit because denunciation and deterrence are secondary factors in sentencing young offenders and are to be considered in a fashion consistent with the principle of “diminished moral blameworthiness” described in s. 3 the YCJA. The court acknowledged that this offence, committed against an 11-year-old and causing her serious psychological harm, might warrant a custodial sentence but for the appellant’s exemplary conduct since the offence and the almost four years that had elapsed between the offence in 2012 and his sentencing in 2016. Under s. 3(1)(b)(iv) and (v) of the YCJA, the delay in this case offended the concept of timely justice. To impose a custodial sentence on the appellant in this case would be contrary to the purposes of the YCJA as it would impede the appellant’s rehabilitation and reintegration into society. The court decided that a fit sentence in this case would be 12 months of probation.