The Court imposed a custodial sentence on a young Indigenous first time offender that sexually assaulted his young cousin. A 90-day custody and supervision order served concurrent with a two-year intensive support and supervision program is determined to be best suited to promote his rehabilitation and is in harmony with all the Youth Criminal Justice Act’s principles and purpose.
Indigenous Law Centre – CaseWatch Blog
An Indigenous youth, BTL, at the age of 14, invited his then 13 year old cousin, SP over to his residence for a visit where he forced unprotected sexual intercourse on her. SP disclosed the assault to her mother who then reported it to police. BTL claimed that he had no memory of the event but his DNA was found in the victim’s underwear. He subsequently pleaded guilty to the offence of sexual assault.
BTL is now 16 years old. He is Carrier and a registered status member of a First Nation. His Pre-Sentence Report described the adverse impact of colonization on the Carrier people and his Nation, that included the legacy of residential schools, child apprehension, poverty, poor health, unemployment and substance abuse. BTL experienced a difficult and chaotic childhood rife with domestic violence, drug and alcohol misuse, criminality, instability and dysfunction. The Ministry of Child and Family Development became involved with BTL’s family due to violence, alcohol and drug intoxication, neglect and parental inability to care for the children.
BTL has a number of developmental, cognitive and psychological issues as a result of his prenatal exposure to alcohol and unstable childhood. He suffers from unspecified seizures and displayed extreme behavioural issues in school, leaving without completing Grade 8. Presently, he lives an empty, solitary life at home devoid of any community, prosocial or cultural activity and has succumbed to intergenerational substance misuse. He has no prior criminal record, however, he does have a poor history of reporting to his Youth Worker and attending appointments. As is his right, BTL refuses to discuss with anyone the circumstances of the offence.
The Youth Criminal Justice Act [“YCJA”] provides a detailed sentencing regime governing the sentencing of youth offenders. The focus of sentencing under the YCJA is balancing conflicting principles to arrive at a sentence tailored to the individual circumstances (R v Okemow, 2017 MBCA 59). Sentencing youth pursuant to the YCJA is a context-specific approach unlike the sentencing regime for adult offenders set out in s 718 of the Criminal Code. The YCJA places mandatory restrictions on the use of custodial sentences. The Court concludes, however, that the serious and violent nature of the offence BTL committed against SP precludes them from imposing an alternative to a custodial sentence.