IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Supreme Court of Canada recognizes that sentencing any offender is a difficult art involving innumerable factors. Sentencing young offenders is even more daunting because typically they are adolescents in the throes of significant and rapid physiological, psychological, and emotional development. Hence, at sentencing, the court is often dealing with an individual who is markedly changed from the one who committed the offence. Such is the case before me.

[2]         On August 12, 2020, after a six-day trial, I convicted C.Z. of sexually assaulting S.F. The circumstances of the offence are particularized in my decision of August 12, 2020, indexed as R. v. C.Z., 2020 BCPC 147 (CanLII). In a nutshell, in the early hours of October 14, 2018, in the aftermath of a house party, C.Z., then 16 years old, sexually assaulted S.F. in various highly intrusive ways. S.F. was 14, no more than a mere acquaintance, exhausted, and struggling to regain her sobriety. C.Z. ignored S.F.’s demands to stop and overwhelmed her attempts to resist. Ultimately, S.F. was able to fend him off and C.Z. gave up trying to have sex with her. The following day, S.F. disclosed to her friends, her mother, and the police that C.Z. had forced sex on her. Despite his persistent denials, C.Z. was arrested, charged and convicted of the offence.

[3]         C.Z., now 18 years old, is before me for sentencing under the Youth Criminal Justice Act. Within the past five months, C.Z. has admitted his wrongdoing to the forensic psychologist and apologized to the Court, which some may view as an act of remorse. C.Z. is an Indigenous first time young offender who suffers from a congeries of neurodevelopmental, physical, and psychological disorders. He had a chaotic early childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse, and transgenerational trauma. Despite these disadvantages, C.Z. has not succumbed to substance misuse or other criminal behaviour.

[4]         Sexual assaults of this magnitude are violent offences that ordinarily attract a custodial sentence, even for young first time offenders. The Crown and Defence jointly recommend a sentence of 24 months’ probation. For the reasons set out below, I accept there are sufficient exceptional circumstances in play to justify imposing a non-custodial sentence.

[5]         This matter came before me for sentencing in [omitted for publication] Provincial Court, on January 27, 2021. I heard submissions from the Crown and Defence and an apology from C.Z. I received into evidence the following exhibits:

[6]         C.Z. was 16 years old when he committed the offence for which he is being sentenced and thus is a “young person” as defined by the Youth Criminal Justice Act, SC 2002, c 1, (the “YCJA”). The YCJA sets out a sentencing regime completely different from that established under the Criminal Code. The predominant principles of sentencing and the available sentence ranges are dramatically different for youths and adults. With the enactment of the YCJA, Parliament created a separate criminal justice system for young persons in recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system: see R. v. D.B., 2008 SCC 25, para. 41; R. v. S.J.L., 2009 SCC 14 (CanLII).

[7]         The YCJA holds that the youth criminal justice system “is intended to protect the public by holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person” by “promoting the rehabilitation and reintegration of young persons who have committed offences”: YCJA, s. 3(1)(a) Thus the appropriate sentencing principles under the YCJA are accountability, proportionality, rehabilitation and reintegration: YCJA, s. 3(1)(b).

[8]         Section 3(1)(c) of the YCJA states:

[9]         Section 38(1) of the YCJA states the purpose of youth sentences is to hold young persons accountable through just sanctions that ensure meaningful consequences for them and promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[10]      Section 38(2) of the YCJA specifies that:

[11]      The YCJA is clear that rehabilitative measures intended to address problems that appear to have caused the young person to commit an offence must not result in a sentence that is disproportionate to the seriousness of the offence committed. The Supreme Court of Canada in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 (CanLII), commented the protection of the public is a long-term outcome of a of a successful youth sentence.

[12]      Section 38(3) of the YCJA requires a youth court judge to consider a number of specific factors in in determining an appropriate sentence, including:

[13]      Section 42(2) of the YCJA provides the court with a list of sentencing options in escalating intrusiveness. These options range from a reprimand in the least serious cases to an intensive rehabilitative custody and supervision in the most serious violent offences. The options are not mutually exclusive. A court can impose any one or more of the sentences that are not inconsistent with one another: s. 42(2). Section 42(14) of the YCJA provides that for most offences, the maximum combined duration of sentences is two years (unless it is one of the serious offences for which an adult could receive a sentence of life imprisonment, in which case the maximum custodial sentence in youth justice court is three years).

[14]      The preamble to the YCJA expresses the need to discourage custody and supervision as a criminal penalty for young persons. Although, s. 39(1) limits the use of custodial sentences, they are available where the young person has committed a violent offence. A violent offence as defined in s. 2 of the YCJA includes one that causes bodily harm.

[15]      C.Z. is 18 years old. His circumstances and antecedents are set out in detail in the three presentence reports marked Exhibits 1, 2, and 3 in this sentencing hearing.

[16]      C.Z. is a member of the [omitted for publication] First Nation, whose members are scattered among a number of small reserve communities on [omitted for publication] Lake. In 1952 the [omitted for publication] people were forcibly resettled when the Provincial Government flooded and submerged their traditional territories to create the Nechako Reservoir which supplies water to the Kenny hydroelectric dam, which in turns supplies electricity to what is now Rio Tinto Alcan’s aluminum smelter in Kitimat. The floodwaters permanently inundated [omitted for publication] lands, villages, spiritual sites and burial grounds. The negative social and environmental impact of the [omitted for publication] First Nation’s dislocation and dispossession resonates to this day.

[17]      C.Z.’s mother, V.C., is a member of the [omitted for publication] Clan of the [omitted for publication] First Nation. His father, C.K., is Caucasian and from Alberta. C.Z.’s grandmother, J.W., grew up in foster homes; was sent to residential school, was sexually abused at an early age by an uncle, and experienced the violent or premature death of many loved ones. J.W. struggles with anger, alcoholism, and the legacy of childhood trauma. C.Z.’s mother also experienced a troubled childhood, marked by sexual abuse, physical abuse, and the loss of family members. She too succumbed to alcoholism and at various times disappeared into the tragedy that is the Vancouver downtown eastside.

[18]      C.Z. was born in [northern British Columbia] on [omitted for publication]. In the first six years of his life, C.Z. moved with his parents from [northern British Columbia] to his father’s family farm in [rural] Alberta, then back again. When C.Z. was six, V.C. and C.K.’s relationship disintegrated and C.Z.’s life completely destabilized. For six or seven years C.Z.’s father disappeared entirely from his life. C.Z. remained with his mother, except when she was on a binge, at which time he lived with his maternal grandparents, J.W. and G.W. Although strict, J.W. was neither angered by nor abusive to C.Z.  G.W. cared dearly for C.Z., teaching him various traditional Indigenous skills such as hunting for moose and beaver, fishing, berry picking, and preparing fish for a potlatch.

[19]      While in his mother’s care, C.Z. was exposed to family violence, residential instability, parental substance misuse, poverty, neglect, and transgenerational trauma. C.Z. says that when angry, his mother yelled at him, belittled him, punched him, and beat him. On one occasion, she threw a knife at him and on another, broke a broom over his back. At age five, while in his mother’s care, C.Z. was physically and sexually assaulted by his mother’s brother. C.Z. told Youth Worker Forsythe he does not talk about the abuse he endured in his mother’s care, because she would simply deny it. C.Z. said his family “engages in a lot of hiding and lying about what they have done.”

[20]      C.Z. suffers from a congeries of neurodevelopmental, physical and psychological disorders, including: (a) Attention Deficit Hyperactivity Disorder (“ADHD”); (b) Fetal Alcohol Spectrum Disorder (“FASD”); (c) Anxiety Disorder NOS (“not otherwise specified” - panic attacks), (d) an intellectual disability; (e) significant difficulties with fine motor, visual motor integration, and manual dexterity skills; and (e) Irritable Bowel Syndrome. Not surprisingly, for C.Z., school was an ordeal. In Grade 3 he was placed on an Individual Education Plan (IEP) to address his academic difficulties. In Grade 4, he was placed on a Behavioural Intervention Plan (BIP) for impulse control and anger management. When he was 12 years old, C.Z. was diagnosed with Complex Developmental Behavioural Conditions. C.Z. was bullied and isolated in elementary school and reacted with anger and aggression. His academic difficulties were exacerbated by poor attendance and multiple suspensions.

[21]      In their May 21, 2014, Multidisciplinary Assessment Summary Report the Northern Health Assessment Network (NHAN) wrote:

[22]      C.Z. described to Dr. Schwartz how his disorders manifest themselves:

[23]      In recent years, C.Z. has manifested signs of mental health distress, including low self-esteem, anxiety, self-harm, and suicidal ideations.

[24]      For a while, C.Z.’s social life improved in high school. This came to a cataclysmic end with S.F.’s sexual assault allegations. As the result of his bail conditions, C.Z. was forced to leave the [omitted for publication] Secondary School. For a while he attended the [omitted for publication] Learning Centre (the “Storefront” alternative school), but ultimately lost interest and left school in Grade 11. Although he does not enjoy school, C.Z. accepts he has to complete Grade 12 and graduate. Once this sentencing hearing is complete, C.Z. intends to finish his schooling.

[25]      After a 12-year tumultuous relationship, V.C. and E.T. separated. Currently, C.Z. resides with his stepfather (E.T.) and his three younger maternal half-sisters in the family home. C.Z. has a wholesome relationship with E.T., whom he views as a hard worker, good provider and positive role model. E.T. is a member of the [omitted for publication] First Nation and has passed on to C.Z. traditional knowledge he learned from his father. V.C. now lives elsewhere with another family member. In the last year she has achieved sobriety and has become a supportive presence in C.Z.’s life. C.Z. has also re-established a close and healthy relationship with his biological father who is a red seal mechanic, farmer, and fisher. C.Z. too has shown much aptitude and interest in mechanics, and is considering it as a vocation.

[26]      Since he was 15 years old (in 2017), C.Z. has worked sporadically for the [omitted for publication] Band office, cutting grass, taking out garbage and cleaning up the yard. In 2019, C.Z. worked at the [omitted for publication] Cultural Camp as a labourer. In 2020, he worked 25 hours per week building a traditional pit house at [a cultural] healing centre. He bought fishing gear and a gym pass with his earnings. When not working, C.Z. spends time at home or at the gym working out or in the community playing rugby. I gather C.Z. is a solitary young man who spends much of his leisure time at home and much of his time at home listening to music or playing video games. I suspect the public opprobrium he experienced as a result of his charge and convictions had a role to play in C.Z.’s self-imposed isolation.

[27]      Although C.Z. initially denied having sexually assaulted S.F., he eventually admitted his guilt to both Dr. Schwartz and the Court. He told Dr. Schwartz that he couldn’t talk about the offence because he felt ashamed and mad at himself. At his sentencing, he said he felt “terrible” for what he had done.

[28]      Dr. Schwartz’s risk assessment was limited by the dearth of empirically validated actuarial instruments available to accurately estimate the risk of adolescent sexual reoffending.

[29]      Dr. Schwartz opined that C.Z.’s psychological profile was similar to youths who experience symptoms consistent with exposure to trauma, peer rejection, and instability. In assessing C.Z.’s risk to the community, Dr. Schwartz identified a number factors that may heighten C.Z.’s risk of reoffending, including his sexualized aggression, sexual victimization, caregiver inconsistency, pervasive anger, school behaviour problems, conduct disorders, and a history of physical assault and exposure to family violence. Dr. Schwartz states:

[30]      Dr. Schwartz also identified a number of protective factors in C.Z.’s life:

[31]      Dr. Schwartz rated C.Z.'s risk of reoffending as falling in the low to moderate range at this time. This risk could be reduced if C.Z. was able and willing to participate in treatment. Still, Dr. Schwartz cautioned:

[32]      Some of the treatment options Dr. Schwartz recommends for C.Z. include: (a) youth sexual-offence counselling; (b) culturally appropriate trauma-informed sexual-offence specific counselling; (c) engaging in pro-social recreational, educational, social, and vocational pursuits; (d) a follow-up psychiatric and/or medical evaluation to treat C.Z.’s ADHD, mental health concerns, including symptoms of depression and anxiety, and monitor him for risk of self-harm; (e) vocational skill development; and (f) referral to Community Living British Columbia to determine his eligibility for support through Persons With a Disability.

[33]      Sentencing a young person under the YCJA is context-specific: R. v. P.R., 2018 SKCA 27. It is a highly individualized process that depends upon the offence, the circumstances of the offence, and the circumstances of the offender. Still, s. 38(2)(b) of the YCJA directs a court to consider parity with other sentences in the region. Sentences for sexual offences usually include a period of probation (s. 42(2)(k) YCJA) with permissible conditions (s. 55(2) YCJA), including community service work (s. 42(2)(i) YCJA) and a curfew . Often youth sentences for sexual offences include: (a) where available, an intensive support and supervision program (s. 42(2)(l) YCJA); and/or (b) a custody and supervision order (s. 42(2)(n) YCJA). Courts rarely impose an intensive rehabilitative custody sentence (s. 42(2)(r) YCJA) except where the offence is an aggravated sexual assault.

[34]      Although the B.C. Court of Appeal in R. v. A.A., 2013 BCCA 202 (CanLII), imposed a deferred custody and supervision order under s. 42(2)(p) of the YCJA, many courts have ruled such an order is statute-barred for sexual offences by virtue of s. 42(5). This section precludes a deferred custody and supervision for an offence where a young person “causes or attempts to cause serious bodily harm.” Sentencing judges often cite R. v. McCraw, 1991 CanLII 29 (SCC) wherein the Supreme Court held that “serious bodily harm” could include a psychological injury that interfered with the integrity, health, or well-being of a victim. (See: R. v. B.T.L., 2020 BCPC 185, at paras.79; R. v. P.K.K., 2006 ABCA 1; R. v. AW, 2021 ABPC 14 (CanLII), paras. 70-72; R. v. NAL, 2018 ABPC 211 (CanLII), R. v. AY, 2019 ABPC 325, R. v. JAH, 2016 MBCA 58; R. v. BS, 2017 MBCA 102; R. v. B.V., 2020 SKPC 45 (CanLII) R. v. P.I., 2018 ONCJ 324 (CanLII); R. v. S.G.F., 2007 BCPC 168 (CanLII)).

[35]      I have set out below some of the sentences the courts imposed for sexual offences by a young offender against a young victim:

[36]      The disparity in sentences arises from the disparity in the circumstances of the offence, the offender and the victim. Broadly speaking, the authorities cited above address those factors identified in s. 38(3) of the YCJA and in Friesen.

[37]      The circumstances of the offence include: (a) the offence charged (i.e. sexual assault, sexual interference, sexual assault causing bodily harm, sexual assault with a weapon, incest, or aggravated assault); (b) the frequency of the sexual abuse; (c) the degree of physical interference (YCJA, s. 38(3)(b)); (d) the duration of the sexual abuse; (e) whether it involved a breach of a position of trust; (f) the presence of coercion or grooming; (g) the presence of gratuitous violence; and (h) whether the sexual abuse occurred in the victim’s home.

[38]      The circumstances of the offender include: (a) the offender’s age at the time of the offence; (b) the offender’s age at sentencing; (c) the offender’s participation in the offence (YCJA s. 38(3)(a)); (d) whether the offender was in a position of trust vis-à-vis the victim; (e) the offender’s physical, mental and emotional health; (f) the offender’s previous findings of guilt (YCJA s. 38(3)(e)); (g) whether the offender was Indigenous or otherwise socially disadvantaged; (h) the offender degree of consanguinity to the victim; (i) the offender’s family and community support; (j) the duration and conditions of the offender’s bail; (k) the offender’s performance on bail; (l) the offender’s efforts at pre-sentence rehabilitation; (m) the offender’s ongoing risk to the community; (n) whether the offender pled guilty; (o) whether the offender expressed remorse; and (p) the time the offender spent in pre-sentence custody (YCJA s. 38(3)(d)).

[39]      The circumstances of the victim include: (a) the age of the victim; (b) the number of victims; (c) whether the victim was Indigenous or an otherwise vulnerable person; (d) the physical, psychological, emotional, and financial impact of the offence on the victim (YCJA, s. 38(3)(b)); and (e) the impact on the community.

[40]      The offence for which C.Z. is before the court for sentencing is one which the courts often, but not always, imposes a custodial sentence. Although it involved only a single incident, C.Z.’s sexual assault on S.F. was prolonged. Although not vicious or life threatening, the assault was still violent. C.Z. pinned S.F. down, tore off her clothing, and forcibly engaged in sexual touching, kissing, cunnilingus, digital and attempted penile penetration.

[41]      Absent are a number of aggravating factors often present in cases where the court has imposed a custodial youth sentence. For example:

[42]      I am mindful the Supreme Court of Canada in Friesen cautions against establishing a hierarchy of physical acts for sexual offences or treating penetration as the most egregious conduct. Despite the absence of penetration in this case, I accept the assault was highly intrusive of S.F.’s physical, psychological, and sexual integrity.

[43]      A fit sentence balances a number of factors personal to C.Z., many of which militate toward a non-custodial sentence. These include:

[44]      The impact on the victim takes into consideration a number of factors which, in this case, militate toward a custodial sentence. These include:

[45]      The collateral consequences are not necessarily aggravating or mitigating factors as they do not relate to the gravity of the offence or the level of responsibility of the offender: R. v. Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal, or occupational implications. C.Z. reported to the Youth Worker the impact of the offence on his life:

[46]      There is no doubt persons charged with a criminal offences face serious social and personal consequences. They experience the loss of liberty, or stigmatization or ostracism in the community, as well as other social, psychological, and economic harms. These are not mitigating; however, in a small community, these factors, if prolonged and pervasive, may constitute hardships personal to the offender which the Court ought to take into account when determining a proportionate sentence: R. v. TWS, 2018 ABQB 870 (CanLII), paras. 78-80. In R. v. Neilson, 2020 ABQB 556 (CanLII), Justice K.M. Eidsvik, held the court ought to consider the community stigma, ostracism, and physical violence the offender suffered as going to some length to satisfy the denunciation component of sentencing.

[47]      In this case, I consider as a collateral consequence the fact that C.Z. was forced to leave the [omitted for publication] Secondary School as the result of the October 15, 2018 Undertaking prohibiting him from going to S.F.’s “residence, school, place of work or anywhere she may be” without exception. There were no other public high schools comparable to [omitted for publication] Secondary School in the community. I note Dr. Schwartz’s psychological assessment indicates C.Z.’s profile was that of a youth suffering from a prolonged sense of rejection from his peers and consequently experienced feelings of isolation, loneliness, and sadness.

[48]      When imposing sentence upon a young offender, a youth court judge must be cognizance of the inherent differences between adults and young persons and the different approaches to sentencing adopted by the Criminal Code and the YCJA. There is a presumption of a diminished moral blameworthiness for young persons who commit crimes. Because he is young, I must consider the long-term impact of any sentence I impose upon C.Z. The sentence I impose must facilitate C.Z.’s rehabilitation while at the same time hold him accountable for his actions.

[49]      The YCJA indicates that a sentencing judge “may” consider the sentencing principles of specific deterrence and denunciation. These principles militate toward a custodial sentence for sexual offences in order to reflect their seriousness and to hold the youth accountable. Accountability, however, does not automatically invite a custodial sentence. A youth can be held accountable through lesser sanctions and the YCJA directs judges to use custodial sentences only when no other sentence is reasonable. In this case both the Crown and Defence urge the court to impose a non‑custodial sentence of 24 months’ probation together with a DNA order.

[50]      Although the Crown and Defence advocate for the same sentence, this is not a joint submission as contemplated in R. v. Anthony-Cook, 2016 SCC 43. I found C.Z. guilty after a trial. There was no agreement as to sentence in exchange for a guilty plea. Accordingly, the court is not required to defer to a joint recommendation: R. v. Dunkers, 2018 BCCA 363 (CanLII). Nevertheless, post-trial negotiations of counsel still assist the sentencing judge and save on judicial and court resources, and where appropriate, ought to be respected.

[51]      I appreciate and respect Crown and Defence’s thorough and thoughtful submissions on the law and facts in this matter. But for their joint recommendation, I would have likely imposed a more intrusive sentence. Nevertheless, the 24 months’ probation counsel propose is within the range of sentences imposed on youthful offenders convicted of sexual offences in comparable circumstances, and not per se unfit. Accordingly, I will accept their recommendations and impose the sentence sought.

[52]      C.Z., on August 12, 2020, I found you guilty of sexually assaulting S.F., [omitted for publication] BC, on October 14, 2018. I am sentencing you to 24 months’ probation pursuant to s. 42(2)(k) of the Youth Criminal Justice Act, on the following terms and conditions:

[53]      As part of your sentence, I also make the following ancillary orders:

[54]      Pursuant to s. 119(1)(s)(ii) of the YCJA, I order that a copy of the reports marked Exhibits 1, 2, and 3 in this sentencing hearing together with my August 12, 2020, Reasons for Judgment and these Reasons for Sentence be released to the Youth Worker for case management purposes.