Court of Appeal

Judge:

By the Court (Beveridge, Saunders and Oland, JJ.A.)

Appeal Heard:

March 15, 2016, in Halifax, Nova Scotia

Subject:

Sentencing – Social Science Research – “violent offence” – Youth Criminal Justice Act, ss. 2, 3(1) and 38

Summary:

The judge sentenced the 14 year old appellant who pled guilty to possession of child pornography to six months’ deferred custody followed by 12 months’ probation.  In finding that the offence had caused psychological harm that amounted to a “violent offence” for which a custodial sentence was available, the judge relied on social science research he conducted himself.  Counsel were not given notice and no expert introduced who could be cross-examined.  The judge considered general, as well as specific, deterrence in imposing sentence.

Issues:

(1)        Whether the judge erred in finding psychological harm and in determining that this was a violent offence;

(2)        Whether he erred in failing to distinguish between the principles of sentencing for adults and for young persons; and

(3)        Whether the sentence he imposed was excessive and overly harsh.

Result:

Leave to appeal granted and appeal allowed.  The judge’s inappropriate use of independent social science research to determine a central issue, namely, whether there had been psychological harm that amounted to a “violent offence”, and in considering general deterrence in determining the sentence of a young person, were errors which materially affected the sentence he imposed on the appellant.  The appellant was sentenced to 18 months’ probation from the date of the original sentence, with conditions as jointly recommended and contained in the judge’s probation order.