R. v. E.B.L., 2015 NSPC 76

• Judge: Atwood, P.C.J.
• Case Date: November 06, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSPC 76;(2015), 366 N.S.R.(2d) 350 (YC)

R. v. E.B.L. (2015), 366 N.S.R.(2d) 350 (YC);

    1154 A.P.R. 350

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.020

Her Majesty the Queen v. E.B.L.

(2851646-2851651; 2015 NSPC 76)

Indexed As: R. v. E.B.L.

Nova Scotia Youth Justice Court

Atwood, P.C.J.

November 6, 2015.

Summary:

On six occasions, the accused young person coaxed a six year old child into the accused's bedroom where he performed "acts of frottage" on the child. Both remained fully clothed. The accused pled guilty to six counts of sexual assault. The Crown and defence jointly recommended a sentence of a six month deferred custody and supervision order, followed by 18 months of probation.

The Nova Scotia Youth Justice Court accepted the joint sentencing recommendation, sentencing the accused accordingly.

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 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5849.24

Sentencing - Considerations on imposing sentence - Hybrid offences - [See Criminal Law - Topic 8715.5 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - On six occasions, the accused young person coaxed a six year old child into the accused's bedroom where he performed "acts of frottage" on the child - Both remained fully clothed - The accused pled guilty to six counts of sexual assault - The Crown and defence jointly recommended a sentence of a six month deferred custody and supervision order, followed by 18 months of probation - The Nova Scotia Youth Justice Court accepted the joint sentencing recommendation - These were violent offences within the meaning of s. 39(1)(a) of the Youth Criminal Justice Act - Custody was permissible - However, given the joint recommendation, the very positive psychological prognosis and the high level of family support, a six month deferred custody order on each charge, to be served concurrently, followed by 18 months of probation was appropriate - See paragraphs 26 to 36.

Criminal Law - Topic 8715.5

Young offenders - General principles - Procedure - Election by Crown - An accused young person pled guilty to sexual assault - The Crown had not made an election as to mode of process - At sentencing, the Nova Scotia Youth Justice Court stated, "In my view, this means, absent a procedural decision by the prosecution that might evince a contrary intent, that the matter ought to be dealt with summarily." - The effect of s. 34(1)(a) of the Interpretation Act was that dual-procedure, hybrid offences were deemed to be governed by an indictable process in the absence of an election by the prosecution to proceed summarily - However, under s. 3 this could be overridden - There was "plenty" in the Youth Criminal Justice Act (YCJA) that would oust the presumption in s. 34(1)(a), including ss. 3, 14 and 32 of the YCJA - "Lots more in the YCJA evinces this tendency toward the less severe" - Accordingly, the court deemed the charges here to have proceeded summarily - See paragraphs 5 to 25.

Criminal Law - Topic 8809

Young offenders - Decisions (incl. punishments) - Probation - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 8817.2

Young offenders - Decisions (incl. punishments) - Deferred custody and supervision order - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 8817.4

Young offenders - Decisions (incl. punishments) - Custody - Violent offences - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. L.T. (2014), 342 N.S.R.(2d) 250; 1083 A.P.R. 250; 2014 NSCA 25, refd to. [para. 5, footnote 1].

R. v. R.V.F. (2011), 306 N.S.R.(2d) 247; 968 A.P.R. 247; 2011 NSCA 71, refd to. [para. 5, footnote 1].

R. v. Oxford (M.) (2010), 299 Nfld. & P.E.I.R. 327; 926 A.P.R. 327; 2010 NLCA 45, refd to. [para. 6, footnote 2].

R. v. D.C. (2014), 352 Nfld. & P.E.I.R. 340; 1097 A.P.R. 340 (N.L. Prov. Ct.), refd to. [para. 9, footnote 4].

R. v. S.B. (2014), 350 Nfld. & P.E.I.R. 235; 1088 A.P.R. 235 (N.L. Prov. Ct.), refd to. [para. 9, footnote 4].

Ryan v. Workers' Compensation Board (N.S.) (1998), 168 N.S.R.(2d) 141; 505 A.P.R. 141 (C.A.), refd to. [para. 18, footnote 7].

Yemshaw v. London Borough of Hounslow, [2011] UKSC 3, refd to. [para. 18, footnote 8].

R. v. K.M.S., 2007 SKCA 16, refd to. [para. 26, footnote 12].

R. v. J.P.L.H.-D. (2013), 339 B.C.A.C. 157; 578 W.A.C. 157; 2013 BCCA 295, refd to. [para. 26, footnote 12].

R. v. Bingley (C.) (2015), 335 O.A.C. 328; 2015 ONCA 439, refd to. [para. 29, footnote 13].

R. v. C.N.T. (2015), 363 N.S.R.(2d) 139; 1143 A.P.R. 139; 2015 NSPC 43, refd to. [para. 33, footnote 14].

R. v. C.D. (2005), 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 33, footnote 15].

Statutes Noticed:

Interpretation Act, R.S.C. 1985, c. I-21, sect. 3 [para. 9]; sect. 34(1) [para. 8].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 3 [para. 11]; sect. 14 [para. 12]; sect. 32 [para. 13].

Counsel:

T. William Gorman, for Nova Scotia Public Prosecution Service;

Douglas Lloy, Q.C., for E.B.L.

This matter was heard at Pictou, N.S., on November 4 and 6, 2015, by Atwood, P.C.J., of the Nova Scotia Youth Justice Court, who delivered the following decision on November 6, 2015.