Alberta Court of Appeal Revisits Sentencing Principles for Youth Offenders

Alex Koustov recently appeared in the Alberta Court of Appeal, fighting to keep his youth client out of custody after he pled guilty to s.271 (sexual assault) of the Criminal Code. The youth was 14 years old and turned 15, at the time of the offending behaviour. Although the Court of Appeal ultimately imposed a custodial sentence, the Court also “stayed” the new sentence, as sought by Alex Koustov. The result was that the client remains out of custody, and that the new sentence did not take force and effect.

The youth (KE) was initially sentenced at the Alberta Court of Justice on May 7, 2024. The Crown sought 9 months of custody and supervision, followed by 9 months of probation. Alex Koustov argued that a proper sentence was 18 months probation, which was accepted by Alberta Court of Justice. The Crown appealed the sentence.

The details of the case can be found here.

The key issues on appeal were i.) whether the sentencing judge committed an error in principle by failing to find in his reasons that the victim had suffered “serious bodily harm” from the offence, and ii.) whether the judge erred in principle by making an improper finding of “exceptional circumstances” justifying a non-custodial sentence.

At the initial sentencing hearing, both the Crown and Alex Koustov had agreed that “serious bodily harm” had occurred, but this was not accepted by the sentencing judge. Alex Koustov maintained that position on appeal, but argued that notwithstanding this fact, the original sentence imposed was not demonstratively unfit.

The majority for Court of Appeal found that “unless there is good reason to believe that an agreed upon fact is not accurate or is unreliable, the sentencing judge must sentence in a way that accords with that fact, and to fail to do so is an error: R v. BS, 2017 MBCA 102 at para 7.”

The parties also agreed at the original sentencing hearing that a deferred custody order was not available, given that a violent offence had occurred. It was further agreed that the gateway to custody was open as per the principles of the Youth Criminal Justice Act. Given these positions, the sentencing judge approached the sentence on the basis that although gateway to custody was open, the court should not impose a non-custodial sentence unless exceptional circumstances existed. He found that exceptional circumstances existed.

The majority for the Court of Appeal found otherwise. Aside failing to find that the victim suffered serious bodily harm (in the form of psychological harm), the sentencing judge also erred to consider the aggravating impact and cumulative moral blameworthiness in the escalating and separate sexual acts encompassed in the guilty plea. More noteworthy, the Court of Appeal reiterated the principles set in its decisions in R v IG 2024 ABCA 264, that exceptional circumstances cannot arise from simply listing mitigating factors and concluding that exceptional circumstances existed. The Court of Appeal found that the circumstances relied on by the sentencing judge did not amount to exceptional circumstances.

The Court of Appeal pointed out that they agreed with Alex Koustov that a number of authorities relied on by the Crown were distinguishable on the facts and provided little guidance.

In the end, the Court of Appeal imposed a sentence of three months custody and supervisions, followed by 15 months of probation.

Interestingly, the Court of Appeal, did not provide guidance as to what factors would amount to “exceptional circumstances”. So like Captain Ahab, counsel are left out at sea in search of this illusive whale. However, counsel should note that this decision suggests that even in the absence of:

• force used against the victim;
• additional acts of violence;
• physical injuries to victim;
• other egregious behavior;
• failing to take responsibility fore the actions;
• or combinations of the two or more of these factors.

In a combination with the presence of:

• an early guilty plea;
• genuine remorse;
• positive presentence report;
• low risk assessment.

A youth offender, where he committed multiple separate of sexual assault (falling in the major sexual assault category), will in most circumstances likely be sentences to some period of custody.

It should be pointed out that the Court of Appeal stayed the new sentence (meaning it does not take force and effect), due to the passage of time and KE’s compliance with his current sentence of probation. This stay of the sentence was consistent with this Court’s earlier decision in R v IG, which Alex Koustov argued as an alternative.

The dissenting decision of Slatter J, who would have dismissed the Crown’s appeal, and noted although the original sentence was on the low end, it was not demonstratively unfit. The dissent brings up several interesting points, and a sub-issues, that the majority did not address. However, the discussion of the dissent is beyond the scope of this article.

What this decision further demonstrates is the complicated nature of sentencing an offender who has not reached the age of majority.