First time Indigenous young offender sentenced to 24 months’ probation for sexual assault of an inebriated 14-year-old. The Court considered the appropriate principles under the Youth Criminal Justice Act, and determined that a sentence of 24 months’ probation is fitting in light of the circumstance of the offence and the offender.

Indigenous Law Centre – CaseWatch Blog

C.Z., and Indigenous youth and first time offender, was convicted of sexual assault. He was 16 year’s old in 2018 when he assaulted an inebriated victim, who was then 14 years old. He ignored her pleas to stop and overcame her attempts to resist, forcing sex on her. The victim on the following day of the assault disclosed to her friends, mother, and the police, that the offence occurred in the early hours of the night following a house party.

The Youth Criminal Justice Act [“YCJA”] sets out a sentencing regime which differs from the regime established under the Criminal Code. The YCJA created a separate stream from young persons in recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system. A Gladue report, and a Psychosocial and Psychological Assessment report were produced to the court by Youth Forensic Psychiatric Services. Among significant Gladue factors, C.Z. had a childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse, and transgenerational trauma.

Under s 42(14) of the YJCA, the maximum combined duration of sentences is two years, unless it is a serious offence for which an adult could receive life imprisonment, in which case the maximum custodial sentence is three years. Under s 2 of the YJCA, sexual assault meets the threshold of a “violent offence”, as it is defined as an offence that causes bodily harm. For young offenders, this is to be a highly individualized process which considers the offence, the circumstances of the offence, and the circumstances of the offender (R v PR, 2018 SKCA 27).

The court notes the aggravating factors at play. Despite admitting guilt, C.Z.’s psychiatric assessments demonstrated concern for his risk of recidivism, stating that as the offender continues to mature into adulthood that reassessment is imperative. Despite the offender’s harsh upbringing and admission of guilt, his offence unequivocally and gravely affected the victim’s life. A sentence of 24 months’ probation is appropriate.

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.