‘ Too young for jail’ – the judge disagreed

REJECTS CROWN ARGUMENT Three boys ‘ used, abused’ 12-year-old girl at school

OTTAWA •

A judge hammered home the message yesterday that unwanted sexual touching between youths — no matter how young — will not be tolerated in schools or anywhere else.

There could be no mistaking Ontario Court Justice André Cousineau’s message when he sentenced three boys to jail and probation for repeatedly groping a 12-year-old girl at school when they, too, were 12 and 13 years old.

Originally, five young boys were charged in the case. However, one boy was acquitted, while another is currently out of the country. This boy is scheduled to appear in court in January.

The three boys sentenced yesterday, now 14 and 15, have no criminal records, and assistant Crown attorney Mark Holmes had asked the judge to impose periods of probation. But Judge Cousineau categorically rejected the Crown’s lesser-sentence submission, and as well as the even milder sentence urged by the boys’ defence lawyers.

“ To not impose custody would make a mockery of the justice system and bring the administration of justice into disrepute,” the judge said, noting he had carefully considered both the defence and Crown positions, but found the case so aggravating that only jail time could properly denounce the boys’ behaviour.

“ They repeatedly violated the sexual integrity of the victim for their own sexual gratification. This case cries out for denunciation. Schools are places of learning — not places of molesting or being molested.”

Judge Cousineau then spoke directly to the boys. “ This young girl was used and abused by you time and time again. You all took the position that you could just come along and help yourself to her body.”

He subsequently sentenced the two 15-year-olds to 150 days in open custody followed by 18 months’ probation, and the younger boy to 30 days open custody followed by a year of probation. Open custody facilities are essentially locked group homes.

As the boys were led away, the mother of one of the boys sobbed and said, “He’s too young for jail. He’s too young for this.”

During the trial, the girl testified that between October, 2003, and February, 2004, the three boys repeatedly fondled her breasts, buttocks, stomach and legs. One boy touched her crotch once. She also said one of the boys licked her face. The boys several times stuck their hands inside her shirt.

Some of the assaults were committed by the boys acting alone, but others involved them as a group.

Most of the assaults took place in the hallways of the Ottawa middle school they attended that year. Other attacks took place when she walked home from school. The assaults were daily, the girl said.

She said on several occasions she asked the boys to stop, said no, or pushed them away. At no time, the girl said, did she consent to the touching or do anything to indicate she was consenting to the touching.

The boys’ defence lawyers tried to show this kind of activity was almost considered normal by many of the children in the school, and the boys did not know it was wrong.

Judge Cousineau rejected that defence out of hand. He told the lawyers they should never have even made such a defence.

The assaults have seriously affected the girl, according to a victim impact statement written by her parents. “ As this experience unfolded, we witnessed our daughter change from a happy, inquisitive, confident, good student to a very isolated, depressed girl who hated school [ because] it was no longer a safe place,” they said. “She spent months of sleepless nights. She had difficulty finding joy in anything. She stopped all of her usual activities.”

The parents also told the court their daughter is trying to regain her self-confidence and sense of happiness, but it has “been a long road to recovery.”

In his sentencing submissions, the Crown attorney asked the judge to impose criminal records on all three of the boys and place them on probation for between one and two years.

Two of the three defence lawyers for the boys asked for conditional discharges and probation, sentences that would have left their clients without criminal records.

They argued that to saddle such young people with criminal records for sexual assault would not be in society’s interests because it would hamper them from being successful in the future.

Rick Morris, lawyer for the youngest boy, reminded the court that his client was 12 years, one month, and three days old when the groping began. “He was very near too young to be charged criminally with this offence at all.”

Under Canadian law, those younger than 12 are not charged with crimes because they are deemed not to be able to understand the consequences of their actions.

The judge, however, said he recognized the age of the boys as a factor in their behaviour, but the protection of young girls at school from such abuse was paramount. He said the repeated nature of the attacks in defiance of the girl’s obvious wish that they stop, the dehumanizing nature of the group assaults and the degrading nature of the groping were tremendously aggravating.