R. v. J.A.H., 2016 MBCA 58

• Judge: Chartier, C.J.M., Monnin and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 14, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 58;(2016), 330 Man.R.(2d) 93 (CA)

R. v. J.A.H. (2016), 330 Man.R.(2d) 93 (CA);

      675 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JN.012

Her Majesty The Queen (appellant) v. J.A.H. (young person/respondent)

(AY 15-30-08448; 2016 MBCA 58)

Indexed As: R. v. J.A.H.

Manitoba Court of Appeal

Chartier, C.J.M., Monnin and Burnett, JJ.A.

June 2, 2016.

Summary:

A young person pled guilty to several offences involving forcible sodomy and/or sexual intercourse with a number of younger children. A sentence of six months deferred custody and 30 months of supervised probation was imposed. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal and set aside the deferred custody and supervision order. The court imposed a combined sentence of three years' supervised probation on condition that the young person continue participating in a full time rehabilitation program that he had been in for some 31 months. The court noted that the sentence in this case was specific to this young person.

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. In this case, publication was subject to the restrictions in ss. 110(1) and 111(1) of the Youth Criminal Justice Act.

Criminal Law - Topic 8702.1

Young offenders - General principles - Interpretation of legislation - Section 42(5) of the Youth Criminal Justice Act set out when a court could make a deferred custody and supervision order - Section 42(5) was amended in October 2012 by the Safe Streets and Communities Act - The Manitoba Court of Appeal discussed the effect of the amendment - See paragraphs 12 to 19.

Criminal Law - Topic 8809

Young offenders - Decisions (incl. punishments) - Probation - A young person pled guilty to several offences involving forcible sodomy and/or sexual intercourse with five young children - Young person knew or was related to victims - More than two dozen incidents spanning a 30 month period - The Manitoba Court of Appeal imposed a combined sentence of three years' supervised probation on condition that the young person continue participating in a full time rehabilitation program that he had already been in for some 31 months - The court noted that the sentence in this case was specific to this young person - See paragraphs 28 to 44.

Criminal Law - Topic 8817.2

Young offenders - Decisions (incl. punishments) - Deferred custody and supervision order - A young person pled guilty to several offences involving forcible sodomy and/or sexual intercourse with a number of younger children - A sentence of six months deferred custody and 30 months of supervised probation was imposed - The Youth Criminal Justice Act (YCJA) precluded the imposition of a deferred custody and supervision order (DCSO) for a young person found guilty of an offence which caused "serious bodily harm" (YCJA, s. 42(5)) - However, the sentencing judge found that, because the Crown had not called any evidence to establish serious bodily harm, it was open to her to impose the DCSO - The Crown appealed - The Manitoba Court of Appeal allowed the appeal and set aside the DCSO - The court held that it could be inferred or presumed that forced anal and/or vaginal penile penetration committed on young children caused or attempted to cause serious bodily harm on the victims - It was, therefore, not necessary for the Crown to tender victim impact statements from each of the five young victims or to call them to the witness stand to prove harm - In such circumstances, the youth court was precluded from imposing a DCSO, leaving a custody and supervision order as the only realistic sentence - See paragraphs 20 to 27.

Criminal Law - Topic 8817.2

Young offenders - Decisions (incl. punishments) - Deferred custody and supervision order - [See Criminal Law - Topic 8702.1 ].

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order - [See Criminal Law - Topic 8817.2 ].

Counsel:

C.R. Savage, for the appellant;

B.F. Bonney and A.S. Grewal, for the respondent.

This appeal was heard on March 14, 2016, before Chartier, C.J.M., Monnin and Burnett, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court, by Chartier, C.J.M., and Monnin, J.A., on June 2, 2016.