R. v. Y., (2015) 366 N.S.R.(2d) 57 (YC)

• Judge: Derrick, P.C.J.
• Case Date: October 06, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 366 N.S.R.(2d) 57 (YC);2015 NSPC 66

R. v. Y. (2015), 366 N.S.R.(2d) 57 (YC);

    1154 A.P.R. 57

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.013

Her Majesty The Queen v. "Y"

(2675200; 2675201; 2675202; 2015 NSPC 66)

Indexed As: R. v. Y.

Nova Scotia Youth Justice Court

Derrick, P.C.J.

October 9, 2015.

Summary:

"Y" was charged that between November 2, 2012 and November 14, 2013, "without reasonable justification or excuse and with intent to obtain photos", he induced a teenage girl to produce intimate photographs of herself, contrary to s. 346(1.1) of the Criminal Code (extortion). He was also charged with possession of child pornography (the photographs) (s. 163.1(4)) and with having child pornography (the photographs) unlawfully in his possession for the purpose of distributing it (s. 163.1(3)(a)).

The Nova Scotia Youth Justice Court, in a decision reported at (2015), 357 N.S.R.(2d) 340; 1127 A.P.R. 340, held that "Y" was liable as a party to the extortion. It convicted the accused of amended count 1, that at or near Halifax, Nova Scotia, between November 2, 2012 and November 14, 2013, "Y", without reasonable justification or excuse and with intent to obtain photos, did attempt to induce "A", to produce photos of "A" by threats, contrary to s. 346(1.1). The court also convicted "Y" of possession of child pornography and unlawfully having in his possession for the purpose of distribution, child pornography (ss. 163.1(4) and 163.1(3)(a)). The Crown applied for an order for a psycho-sexual assessment.

The Nova Scotia Youth Justice Court, in a decision reported at (2015), 358 N.S.R.(2d) 170; 1131 A.P.R. 170, dismissed the application.

The Nova Scotia Youth Justice Court sentenced "Y" to a two year conditional sentence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim - [See Criminal Law - Topic 5911 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5911 and third Criminal Law - Topic 8819 ].

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See Criminal Law - Topic 5911 ].

Criminal Law - Topic 5911

Sentence - Extortion - "Y" was convicted as a party of extortion; possession of child pornography; and unlawfully having in his possession for the purpose of distribution, child pornography - The trial judge found that he attempted to induce a teenage girl to produce intimate photographs of herself - "Selfie" photographs of "A", bra on and bra off, were found on the accused's computer - "Y" was 16 at the time - The Nova Scotia Youth Justice Court stated that "There is no dispute that 'Y''s offences, underpinned by his callous, deliberate targeting and torment of 'A', were very serious. He operated under a cloak of anonymity and persisted in victimizing a fragile, suicidal girl. He engaged in a campaign that was purposefully dehumanizing and heartless. He appears to recognize that now. Notwithstanding the significant degree of moral responsibility borne by 'Y', it is relevant to the issue of holding 'Y' to account that he perpetrated his offences as a highly vulnerable young person with very significant mental health issues. 'Y''s precarious mental health, social dysfunction and isolation played a contributing role in his offending. Having account for the factors I have just reviewed and because accountability in 'Y''s case will be achieved through the duration of his sentence order and the nature of the conditions imposed on him, I fail to see how a conditional discharge is too little accountability. ... [A] probation order ... does not satisfy the requirement under the YCJA [Youth Criminal Justice Act] that, having taken proportionality into account, the sentence be the least restrictive sentence capable of achieving the purpose set out in section 38 of the Act. I have concluded that the just sanction with meaningful consequences that will hold 'Y' to account and promote his rehabilitation and reintegration into society is a conditional discharge with a duration of two years." - See paragraphs 52 to 54.

Criminal Law - Topic 8801

Young offenders - Decisions (incl. punishments) - General - The Nova Scotia Youth Justice Court discussed the purpose and principles of youth sentencing - See paragraphs 35 to 44.

Criminal Law - Topic 8806

Young offenders - Decisions (incl. punishments) - Sentencing considerations - [See Criminal Law - Topic 5911 ].

Criminal Law - Topic 8817.4

Young offenders - Decisions (incl. punishments) - Custody - Violent offences - "Y" was convicted as a party of extortion; possession of child pornography; and unlawfully having in his possession for the purpose of distribution, child pornography - The trial judge found that he attempted to induce a teenage girl to produce intimate photographs of herself - "Selfie" photographs of "A", bra on and bra off, were found on the accused's computer - "Y" was 16 at the time - The Nova Scotia Youth Justice Court applied a harm-based analysis of "Y"'s offences, and held that they fell within the definition of a "violent offence" under the Youth Criminal Justice Act (YCJA) - The court found that in the commission of the offence of possession of the "selfies" for distribution, "Y" endangered the life or safety of "A" by creating a substantial likelihood of causing psychological harm - As a matter of law, psychological harm was encompassed within the term "bodily harm", including in the context of the YCJA - See paragraphs 40 to 42.

Criminal Law - Topic 8819

Young offenders - Decisions (incl. punishments) - Conditional discharge - "Y" was convicted as a party of extortion; possession of child pornography; and unlawfully having in his possession for the purpose of distribution, child pornography - The trial judge found that he attempted to induce a teenage girl to produce intimate photographs of herself - "Selfie" photographs of "A", bra on and bra off, were found on the accused's computer - "Y" was 16 at the time - The Nova Scotia Youth Justice Court imposed a conditional discharge - The conditions included internet restrictions - The court stated that it had "concerns about the social media restrictions further isolating 'Y' and impairing his ability to overcome his social anxiety and reintegrate into society. It will also be important for 'Y' to eventually re-establish a healthy engagement with social media. Having said that, the nature of 'Y''s offending makes it inappropriate to permit social media access unless and until he has made progress on identifiable rehabilitative goals and it can be demonstrated that some relaxation of the social media restrictions would be consistent with his rehabilitation." - See paragraph 56.

Criminal Law - Topic 8819

Young offenders - Decisions (incl. punishments) - Conditional discharge - "Y" was convicted as a party of extortion; possession of child pornography; and unlawfully having in his possession for the purpose of distribution, child pornography - The trial judge found that he attempted to induce a teenage girl to produce intimate photographs of herself - "Selfie" photographs of "A", bra on and bra off, were found on the accused's computer - "Y" was 16 at the time - The Nova Scotia Youth Justice Court imposed a conditional discharge - The court stated that it had "decided to accept the Crown's recommendation that 'Y' perform 100 hours of community service work (which effectively works out to an hour a week over the duration of this sentence) despite my concerns, and the submission by ['Y''s counsel] that this number of hours is overly onerous. The purpose of the community service hours is accountability but not at the expense of 'Y''s mental health or his rehabilitation. Including community service hours in 'Y''s sentence order also provides the opportunity for him to find, with the assistance of his youth worker, a creative option or options to re-engage with the community and experience a positive, normalizing social activity. If this condition is incompatible with 'Y''s therapeutic course then it can be varied on application to the court." - See paragraph 57.

Criminal Law - Topic 8819

Young offenders - Decisions (incl. punishments) - Conditional discharge - "Y" was convicted as a party of extortion; possession of child pornography; and unlawfully having in his possession for the purpose of distribution, child pornography - The trial judge found that he attempted to induce a teenage girl to produce intimate photographs of herself - "Selfie" photographs of "A", bra on and bra off, were found on the accused's computer - "Y" and "A" were both 16 at the time - The Crown recommended that "Y"'s sentence order direct that he remain away from children under the age of 14 years old except when in the company of his parents or an adult approved by his youth worker - The Nova Scotia Youth Justice Court declined to include this proposed condition - "It emerges from a recommendation in the section 34 psychological assessment. In that recommendation, that 'Y' be restricted from having any unsupervised contact with children younger than 14 years, the assessor indicated the following: 'It is highlighted that the present assessor was unable to completely confirm or deny any current sexually deviant interests on the part of 'Y'. ... Moreover, his offence did not included (sic) elements of deviant arousal to children, given that the victim was a same-aged peer ...' As the section 34 assessment acknowledges, there is no basis for restricting 'Y''s access to children under 14, either in the assessment or on the facts of 'Y''s offences. To do so would be to impose a condition arbitrarily and ... would unfairly stigmatize 'Y'" - See paragraphs 58 and 59.

Criminal Law - Topic 8819

Young offenders - Decisions (incl. punishments) - Conditional discharge - [See Criminal Law - Topic 5911 ].

Cases Noticed:

R. v. A.O. et al. (2007), 222 O.A.C. 38 (C.A.), refd to. [para. 35].

R. v. C.D. (2005), 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258 (S.C.C.), refd to. [para. 41].

R. v. N.G. et al. (2014), 311 Man.R.(2d) 286; 2014 MBPC 63, refd to. [para. 41].

R. v. C.N.T. (2015), 363 N.S.R.(2d) 139; 1143 A.P.R. 139; 2015 NSPC 43, refd to. [para. 42].

R. v. P.J.S. (2008), 271 N.S.R.(2d) 376; 867 A.P.R. 376 (C.A.), refd to. [para. 46].

R. v. R.P., [2004] O.J. No. 3845; 2004 ONCJ 190, refd to. [para. 49].

Counsel:

Jamie Van Wart and Mark Heerema, for the Crown;

Peter Planetta, for "Y".

This sentencing matter was heard on October 6, 2015, by Derrick, P.C.J., of the Nova Scotia Youth Justice Court, who delivered the following decision on October 9, 2015.