R. v. B.T.L., 2020 BCPC 185

Citation: R. v. B.T.L. 2020 BCPC 185 Date: 20201007 File Nos: 5177-1, 5177-2-A Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act , SC 2002 c 1 REGINA v. B.T.L. Identification Ban Pursuant to s.486.4 Publication Ban: pursuant to ss. 110 and 111 of the Youth Criminal Justice Act REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Baines, A. Counsel for the Defendant: Cooper, L. Place of Hearing: Prince George , B.C.

Dates of Hearing: September 8, 11, 2020 Date of Judgment: October 7, 2020 A Corrigendum was released by the Court on February 9, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction [ 1 ] On the morning of Christmas Eve 2017, 14 year old B.T.L. invited his 13 year old cousin over to his residence for a visit. When she arrived B.T.L. snuck S.P. into his bedroom where he forced unprotected sexual intercourse on her. S.P. was frightened; she told him to stop and started crying. Eventually B.T.L. relented and let her go. S.P. disclosed the assault to her mother who reported it to the police. B.T.L. claimed he had no memory of the event, however, his DNA was found in S.P.’s underwear. B.T.L. pled guilty to the offence of sexual interference on March 4, 2020.

Issue: [ 2 ] The issue before me is whether this Court ought to impose a custodial or non-custodial sentence on this young indigenous first time offender.

Procedural History [ 3 ] On March 4, 2020, B.T.L. entered a guilty plea to Count 2 on Information 5177-1, charging him on or about December 24, 2017, at or near Prince George, BC, committing an offence of sexual interference of S.P., a person under the age of 16, contrary to s. 151 of the Criminal Code . [ 4 ] On September 8, 2020, B.T.L. entered a guilty plea to the sole count on Information 5177-2-A, charging him that between March 12, 2020, and March 31, 2020, at or near Prince George BC, he breached his undertaking, contrary to section 145(4) (

a) Criminal Code by failing to report. [ 5 ] This matter came before this Court for sentencing on September 8 and 11, 2020, and continued on October 7, 2020. I have had received and heard submissions of counsel and received into evidence the following exhibits: a. Exhibit 1: Admissions of Fact signed by Counsel for the Crown and the Defence and filed with the court on March 4, 2020; b. Exhibit 2: Pre-Sentence report of Youth Worker Mark Unger filed with the court on July 30, 2020; c. Exhibit 3: Psychosocial Report of Katrina Ludwig, Psychiatric Social Worker and the Psychiatric report of Dr.

David William Morgan, Forensic Psychiatrist, both with the Youth Forensic Psychiatric Services. These reports were filed with the Court on July 24, 2020. d. Exhibit 4: Victim Impact Statement of S.P. dated September 4, 2020. Circumstances of the Offence [ 6 ] On December 24, 2017, at around 9 a.m., 14 year old B.T.L. was snap chatting with his 13 year old cousin, S.P. B.T.L. invited S.P. to come to his residence at [omitted for publication] in Prince George, BC. He asked her to knock on the back window, which she did. B.T.L. let S.P. in through the window and led her to his bedroom.

When his mother and her boyfriend came home B.T.L. told S.P. to hide in the closet. Again she complied, and after a while B.T.L. told her she could come out. [ 7 ] B.T.L. told S.P. to sit on the bed next to him. He leaned towards S.P. He put his hands down her pants and began rubbing her private parts. She told him to stop, saying it was wrong because he was her cousin. B.T.L. told S.P. he thought she would like it because she used to like him. He covered S.P.’s mouth so she could not make any sound. He took off her pants and underwear and put his penis into her vagina. He did not wear a condom.

S.P. tried to stop B.T.L. and started to cry. She was scared and froze. B.T.L. told her to stop crying and got off her. He did not ejaculate. He gave S.P. her pants and underwear. He told her he was sorry and he thought it would be okay. B.T.L. begged S.P. not to tell anyone. At B.T.L.’s insistence, S.P. climbed back out the window in order to leave. She returned to the place where she was staying. S.P. told T. and her brother. S.P. then called her mother and told her what happened and her mother took her to the hospital. [ 8 ] Dr. Byrne conducted a sexual examination of S.P.

He found some vaginal tenderness and S.P.’s hymen was not intact. Dr. Byrne took DNA samples which subsequently tested positive for B.T.L.’s DNA on S.P.’s underwear. [ 9 ] B.T.L. was arrested by the RCMP on December 24, 2017, and released on an Undertaking to the Officer in Charge. [ 10 ] B.T.L. says he has no recollection of the events, however, on March 4, 2020, he pled guilty based on the facts set out in Exhibit 1. Circumstances of the Offender [ 11 ] B.T.L. is 16 years old. He is Carrier and a registered status member of the [omitted for publication] First Nation and the [omitted for publication] Band.

Although born in Vancouver, B.T.L. spent much of his childhood in [omitted for publication], a [omitted for publication] community situated approximately 15 km west of [omitted for publication]. Youth Worker, Mark Unger, writes in his Pre- Sentence Report (Exhibit 2), the adverse impact of colonization on the Carrier people and [omitted for publication] Nation included the legacy of residential schools, child apprehension, poverty, poor health, unemployment and substance abuse.

These are all live issues in B.T.L.’s community and have directly affected him throughout his childhood and continue to the present day. [ 12 ] In 2012, B.T.L.’s parents, E.L. and A.T., separated when he was nine years old. B.T.L. moved with his mother and siblings to Prince George, BC. [ 13 ] B.T.L. experienced a difficult and chaotic childhood. His home was rife with domestic violence, drug and alcohol misuse, criminality, instability and dysfunction.

From August 27, 2011 to May 2013, and again from March 16, 2015, to June 26, 2016, B.T.L. and his siblings were either in the care or under the supervision of the Ministry of Child and Family Development. MCFD became

involved with the B.T.L. family because of the family violence, alcohol and drug intoxication, neglect and parental inability to care for the children. [ 14 ] B.T.L. believes that three years ago his home life became healthier when his mother entered into an intimate relationship with D.H. E.L. and D.H. reside in Prince George with B.T.L. and four of his six siblings. All of his caregivers are on social assistance.

The Crown advises E.L.’s new relationship is also fraught with domestic abuse and contests B.T.L. and his mother’s positive view of their current domestic situation. [ 15 ] B.T.L. has a number of developmental, cognitive and psychological issues as a result of his prenatal exposure to alcohol and unstable childhood. Dr.

Morgan opines B.T.L. fulfills the DSM5 diagnosis for neurodevelopmental disorder associated with prenatal alcohol exposure (Alcohol Related Neurodevelopmental Disorder – ARND), specific learning disorder with impairment in mathematics, cannabis use and alcohol use disorder, both currently in sustained remission and unspecified anxiety disorder. [ 16 ] B.T.L. suffers from unspecified seizures and displayed extreme behavioural issues in school. Early on, the school flagged B.T.L. as suffering from a complex developmental disorder and possibly a serious mental illness.

He required intensive behaviour intervention and academic support. Eventually B.T.L. left school in 2017 without completing Grade 8. Presently, B.T.L. lives an empty, solitary life at home devoid of any community, prosocial or cultural activity. He does not participate in sports and spends his time at home with his family and playing video games. B.T.L. has succumbed to intergenerational substance misuse, which began with alcohol, but has expanded to include marijuana, crystal methamphetamines, cocaine and heroin.

He has been admitted to the hospital when he was 12 and 15 years old for severe alcohol intoxication with blackouts and blackout-related suicidal ideation. [ 17 ] On July 13, 2020, B.T.L. was arrested and spent the night in the cells when the RCMP found him extremely intoxicated in downtown Prince George. Recently, B.T.L. has experienced hallucinations. The presentence, psychosocial and psychiatric reports describe B.T.L. variously as very quiet, introverted, shy, withdrawn, socially isolated, depressive, non-communitive, non-participatory, anti-social, guarded and unresponsive.

B.T.L. was assessed by the Asante Centre in June 2019, and in addition to ARND, displayed significant impairment in all domains such as cognition, executive and adaptive functioning, problem solving, attention activity, and speech and language. Not surprisingly, Dr. Morgan opines B.T.L. suffers from low self-esteem. [ 18 ] In his Psychiatric Report, Dr. Morgan (on page 3) references the Admissions of Fact marked Exhibit 1 in this sentencing hearing. Dr.

Morgan noted at para. 32 that B.T.L.’s offence indicated “a mild degree of planning and sexualized aggression, but no evidence of sexual drive and preoccupation.” Dr. Morgan goes on to opine in para. 36 of his report: [36] From the risk assessment … it is my clinical opinion that whilst B.T.L.’s behavior was driven by sexual arousal, this was probably not the result of an underlying paraphilic disorder. Instead, it appears to me that B.T.L., in light of his being a shy, socially awkward and introverted individual, probably had sexual needs which he was not able to meet.

The victim was a same age peer, though his cousin. B.T.L. does not appear to be a criminally entrenched youth, but is an individual who was raised in an environment fret with substance use, domestic violence and chaos. There was some effort made to overpower the victim, but this did not involve significant violence and he stopped prior to penetrating her with his penis. [ 19 ] In regard to his last comment, Dr. Morgan has misstated the facts which he correctly identified in para. 16. Specifically, B.T.L. did penetrate the victim’s vagina, although he did not ejaculate. [ 20 ] At para. 26 of his report, Dr.

Morgan references a psychological examination conducted by Dr. Ashley Heiner as part of the Youth Forensic Psychiatric Services assessment made under s. 34 of the YCJA . Dr. Heiner’s report was not provided to the Court. Dr. Morgan reported Dr. Heiner as finding that B.T.L.’s behaviour was “driven by sexual arousal, and that his actions were neither impulsive nor opportunistic.” Dr. Heiner noted B.T.L.’s poor regulation of affect and impulse, poor judgment and limited planning skills related to prenatal exposure to alcohol may have impaired his judgment and behaviour.” Dr.

Morgan goes on to state at paras. 27, 28 and 30 of his report to state: [27] Dr. Heiner noted with regard to risk factors for violence generally, B.T.L.’s substance use, anger difficulties, problems with executive functioning, emotional instability, depressive and anxious conditions, limited involvement in educational vocational pursuits, antisocial connections and insufficient social communication skills were all relevant. [28] Dr. Heiner noted that treatment for B.T.L. would probably be most effective form of risk assessment, as it could help him moderate his risk factors and also develop protective factors.

Substance use was identified as a key concern. . . . [30] In terms of B.T.L.’s risk of future violence, I concur wholly with Dr. Heiner. [ 21 ] Dr. Morgan states at para. 39 that B.T.L. will require significant clinical intervention targeting his affective dysregulation, impulsivity, anger difficulties, depression, anxiety and social communication problems. B.T.L. will also need increased pro-social supports, educational and vocational pursuits and counselling.

He would also benefit from structure and supervision. [ 22 ] B.T.L. has very little knowledge of his Carrier or [omitted for publication] culture and told his Youth Worker he has no interest in learning of his indigenous heritage at this time. Criminal Record [ 23 ] B.T.L. has no prior criminal record; however, he does have a poor history of reporting to his Youth Worker and attending appointments. Youth Worker Mark Unger describes B.T.L.’s performance on bail between December 24, 2017, and March 21, 2018, as unacceptable. Youth Worker Unger supervised B.T.L. on an Undertaking to a Judge dated December 4, 2019.

He describes B.T.L.’s performance on bail since that time as abysmal. B.T.L. repeatedly missed appointments with the Youth Worker and refused to attend assessments with the Youth Forensic Psychiatric Services.

[24] As a result of his repeated failure to report as directed by his Youth Worker, B.T.L. was charged under Information 5177-2-A forbreaching his undertaking. He was arrested on May 19, 2020, and held in custody until May 25, 2020, when he was again released on hisoriginal undertaking. Since then, B.T.L. has been far more compliant with his bail conditions. He also attended his Youth ForensicPsychological Assessment interviews and Case Aid Programing with Ken Edzerza on a voluntary basis for several months. [25] As is his right, B.T.L. refuses to discuss with anyone the circumstances of the offence.

Victim Impact [26] In her Victim Impact Statement, S.P. wrote: To this day, I still feel it. I feel the sexual assault. Sometimes I lie in bed and cry and think about it over and over again. It’s stuck onrepeat. It’s been 3 years and I cannot forget. I have flashbacks where I see and feel and remember every detail down to the plates full ofhalf-eaten macaroni sitting on the floor. I still have nightmares. I stay up late and think about everything that led up to the sexual assaultand how I ended up on the streets. After the sexual assault, I felt like I was a toy guys could use.

I let myself get into relationships where I was abused; I’d wake up withthem doing things to me, and I would feel pressured into doing things I didn’t want to do. I felt this was to be expected in a relationship.Intimacy has become difficult. My family has been forever changed by this incident. [B.T.L.] used to live with me and my family before this happened. It feels like abetrayal. It’s hard to trust my family members. We don’t see each other’s family anymore. My younger brothers can’t play with hisyounger brothers. His dad still lives with us and it’s awkward because he knows what happened.

He treats me differently now. Hedoesn’t talk to me very much anymore. I started drinking and smoking. At one point I was doing meth. I got help with the drugs and haven’t had meth since November 2019. Iquit smoking. For a while I also used to self-harm because of the sexual assault. Although I quit that, I have scars running up and downmy arms and legs that will never go away. My schooling was impacted. I struggle with being in class and everything that would start tocome back to me. My school work suffered because of this. I almost failed grade 8 and grade 9.

Sometimes when I am walking around PG I fear I’ll run into him. It makes me feel unsafe knowing he’s out and doing whatever hepleases. I am seeing a counsellor and have been diagnosed with PTSD, depression, anxiety and I have self-destructive tendencies. I also have hadmore that just thoughts about suicide. I tried to complete suicide, but my mom called the police to stop it. There are some days it feels like everything that happened is like a rope tied around my neck. Some days it gets lighter, and some daysit’s barely noticeable, but it is always there.

People tell me I shouldn’t have gone there, but I want them to know I didn’t deserve what happened. I want him to know that I won’t lethim take over my life. I don’t deserve that. There will be a day when I wake up with a smile on my face knowing that I am stronger thanwhat he has done to me. The Positions of the Parties [27] The Crown seeks a custodial sentence of six to eight months to be served concurrently with a 24 month Intensive Supervisionand Support Program (“ISSP”). In support of its position, the Crown relies on the following authorities: (

a) R. v. S.G.F., 2007 BCPC 168; (

b) R. v. C.V.S., 2010 BCPC 71 ; (

c) R. v. D.B.V., 2011 BCSC 1350; (

d) R. v. J.L., 2013 BCPC 347 ; (

e) R. v.A.A., 2013 BCCA 202 ; and (

f) R. v. P.I., 2018 ONCJ 324 . I will address these authorities later in this decision. [28] The Defence seeks a six month Deferred Custody and Supervision Order with a concurrent two year Intensive Support andSupervision Program on the terms and conditions recommended by Youth Worker Mark Unger on September 8, 2020. One of the salientfeatures of the defence’s plan is for B.T.L. to attend, participate in and complete the Camp Trapping full-time attendance program as andwhen directed by the Youth Worker. I understand this program is approximately 110 business days in length.

Legislative Framework Purpose and principles of sentencing [29] The Youth Criminal Justice Act (the “YCJA”) provides a detailed sentencing regime governing the sentencing youth offenders.The focus of sentencing under the YCJA is “balancing conflicting principles to arrive at a sentence tailored to the individualcircumstances”: R v Okemow, 2017 MBCA 59 at para 47. Sentencing youth pursuant to the YCJA is a context-specific approach unlikethe sentencing regime for adult offenders set out in s. 718 of the Criminal Code. [30] When sentencing B.T.L.

I must be mindful of the purposes and principles of sentencing set out in ss. 3 and 38 of the YCJA.Section 3 states: Policy for Canada with respect to young persons 3

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [ 31 ]

Section 38 states: Purpose 38

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 32 ] In order to contextualize the purposes and principles of youth sentencing, I have considered the following factors: (

a) holding B.T.L. accountable with a fair sentence that has meaningful consequences; (

b) rehabilitation; (

c) reintegrating him into society; (

d) his lack of previous record; (

e) his lifestyle, attitude, and history; (

f) the circumstances of the offence as set out in the Admissions of Fact (Exhibit 1); (

g) sexual interference is a serious offence; (

h) impact of the offence on the victim, S.P. [ 33 ] I have also gleaned information with respect to the offender, B.T.L., the victim, S.P., and the circumstances of the offence from a number of sources, including: (

a) submissions of counsel; (

b) Admissions of Fact filed in Court on March 4, 2020 (Exhibit 1); (

c) Youth Worker Mark Unger’s Presentence Report (Exhibit 2); (

d) Katrina Ludwig’s Psychosocial Report (Exhibit 3) report filed with the court on July 24, 2020; and (

e) Dr. Morgan’s Youth Forensic Psychiatric report filed with the court on July 24, 2020 (Exhibit 3).

I have also heard from Youth Worker Mark Unger, Camp Trapping Culture and Program Director, Larry Garnot. [ 34 ] I also invited B.T.L. to address the Court which accepted and said he was sorry. [ 35 ] Upon finding a youth guilty, the YCJA empowers a judge to impose sentences ranging from a judicial reprimand to intensive rehabilitation custody and supervision . [ 36 ] Both the Crown and Defence acknowledge the offence of sexual interference to which B.T.L. pled guilty attracts a sentence at the more serious end of the spectrum. [ 37 ] The Crown seeks a sentence of c ustody and supervision.

If I imposed such a sentence, B.T.L. would have to spend two-thirds of his sentence in custody, with one-third under supervision and support in the community. The custodial portion would be served under the care and control of Youth Corrections. "Closed custody" means youth are being held in jail. "Open custody" means youth are in jail with fewer restrictions and conditions. [ 38 ] The

preamble to the YCJA expresses the need to discourage custody and supervision as a criminal penalty for young persons.

Accordingly, s. 39 (1) limits the use of this sentence solely to the following cases: a. the young person has committed a violent offence; b. the young person has failed to comply with non-custodial sentences; c. the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than 2 years and has a history that indicates a pattern of findings of guilt or extrajudicial sanctions; d. in exceptional cases where the aggravating circumstances in the commission of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 39 ] A violent offence is defined in s. 2 of the YCJA as follows violent offence means

(

a) an offence committed by a young person that includes as an element the causing of bodily harm; (

b) an attempt or a threat to commit an offence referred to in paragraph (a); or (

c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantiallikelihood of causing bodily harm. [40] The YCJA does not define bodily harm.

The Criminal Code, in s. 2, defines bodily harm as “any hurt or injury to a person thatinterferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” Courts have consistentlyheld that psychological harm may constitute bodily harm. [41] The sentence sought by the Defence, namely a six month deferred custody and supervision order, would allow B.T.L. to servehis sentence in the community under conditions rather than in a youth correctional facility.

This sentence is similar in some respects to aconditional sentence of imprisonment under s. 742.1 of the Criminal Code. If B.T.L. does not comply with the conditions, the Court mayorder a custody and supervision sentence for the remaining period of the sentence initially imposed.

This sentence is not available if Idetermine B.T.L. is guilty of a serious violent crime. [42] Neither the Crown not the defence provided specific recommendations on the sentence for the breach of bail under Information5177-2-A, beyond submitting a conditional discharge is not appropriate. [43] The emphasis of the YCJA is to ensure meaningful accountability through restorative sentences, as opposed to reliance onincarceration, to promote the long-term protection of the public. Sentencing Authorities [44] I have canvassed the Crown authorities below.

A number of the offences discussed in those cases predate the October 23, 2012amendments to the YCJA with the enactment of the Safe Streets and Communities Act. [45] In R. v. S.G.F., 2007 BCPC 168 , the young offender pled guilty to one count of sexual interference and a breach of aprobation order. S.G.F. committed the offence against the four-year-old girl he was babysitting. He also breached his probation order byfailing to report to his youth worker as directed or to complete his community service orders.

He had a prior criminal record withconvictions for eight offences, two of which were substantive offences and six were breaches of court orders. The psychiatrist did notfind S.G.F. a high risk to reoffend. The sentencing judge accepted the offence was impulsive and opportunistic. S.G.F., however, did notmake use of services available to him in the community; he would not attend school nor engage with his youth worker.

Judge Cohendetermined a deferred custody and supervision sentence would not properly protect the community or have any capacity to rehabilitate orreintegrate S.G.F., or ensure he realized the meaningful consequences of his actions. Accordingly, Judge Cohen imposed a globalcustodial and supervision sentence of six months, four of which would be served in closed custody and two in the community, followedby a 12-month ISSP order. [46] In R. v. C.V.S., 2010 BCPC 71 , the young offender entered guilty pleas very early in the proceedings to repeated sexualassaults on his very young cousin.

The offence involved at least 20 incidents over 18 months and included oral sex, sexual touching andone instance of attempted anal penetration. C.V.S. was 13 when he began sexually abusing his cousin. He used bribery and threats in avery predatory manner to groom his young victim. The abuse was discovered when the six year old victim was observed acting out in asexualized manner against a three-year-old relative.

Judge Frame had no difficulty finding the sexual abuse constituted a violent offencegiven its presumed psychological impact on the victim. [47] The YCJA in force at the time did not define violent offence and “serious violent offence” had a different meaning than it does inthe current enactment. (The present

definitions came into force on October 23, 2012, with the enactment of the Safe Streets andCommunities Act, SC 2012, c 1.) Judge Frame cited the decision in Supreme Court of Canada in R. v. C.D., 2005 SCC 78 ,which defined “violent offence” found in s. 39(1)(

a) of the YCJA as an offence in the commission of which a young person causes,attempts to cause or threatens to cause bodily harm. Bodily harm includes both physical injury and psychological harm. As to “seriousbodily harm, the majority in C.D. endorsed its decision in R. v.

McCraw, (SCC), that “serious bodily harm” is “any hurtor injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health orwell-being of the complainant”. [48] Judge Frame went on to consider whether to designate C.V.S.’s offence a “serious violent offence.” She accepted that s. 39(1)(a)of the YCJA applies in cases where there is evidence of “hurt or injury, physical or psychological, that has interfered in a substantial waywith the victim’s physical or psychological integrity, health or well-being.” She concluded something more than the presumption ofpsychological harm is required to establish an offence is a serious violent offence.

She goes on to state: [32] I accept that a sexual assault on a child is a serious and significant threat to the child’s well-being. Even absent a victim impactstatement, I am satisfied that there is a clear indication of a long-term, traumatic effect on C. I accept Justice Abella’s assessment thatsexual abuse committed against a child is profoundly, psychologically violent, coercive and exploitative. It is evident not only in thepredatory nature in which CVS groomed his victim, but in the outcome represented by C.’s own conduct.

This is a serious violentoffence. [49] Ultimately, Judge Frame exercised her discretion not invoke the “serious violent offence” designation in this case based upon theyouth before her. She accepted that CVS was deeply remorseful and ashamed of his actions which were promising indicators for hisrehabilitation. CVS had been sexually abused. He came from a family deeply affected by sexual abuse, poverty, isolation andinappropriate parenting in his early years. Judge Frame imposed a non-custodial sentence (3 years’ probation). [50] In R. v.

D.B.V., 2011 BCSC 1350, the young indigenous offender was 14 at the time of the offence and the victim was the 9 yearold playmate of his younger sister. DBV inserted his fingers in the girl’s vagina, causing a two inch tear to her vagina and significantblood loss. She required surgical intervention involving six to eight stitches. DBV was charged with aggravated sexual assault on the

victim. Justice Joyce found DBV’s very young age and lack of record mitigating. He noted that the principles in play when sentencing anadult sex offender are not the same as when sentencing a youth. Specifically, the principles of denunciation and general and specificdeterrence were not principles of sentencing under the YCJA then in force: see para. 16, citing R. v. P.(B.W.), 2006 SCC 27 andR. v. T.(C.) (2005), 2006 MBCA 15 .

In P.(B.W.) Charron J. held that long-term protection of the public is achieved byaddressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and byholding young persons accountable through the imposition of meaningful sanctions related to the harm done. Justice Joyce imposed asentence of 18 months’ intensive rehabilitative custody and supervision order pursuant to s. 42(2)(2)(

r) of the YCJA. [51] R. v. J.L., 2013 BCPC 347 , the 16 years old offender entered a guilty pleas to the sexual assault causing bodily harmand breaching his Undertaking. The substantive offence occurred on April 3, 2013. J.L. was captured on videos committing a highlyvicious, brutal, unprovoked, physical and sexual attack on a defenceless victim. The victim provided a Victim Impact Statement attestingto her physical and psychological injuries and emotional trauma sustained as a result of the offence.

Judge MacCarthy imposed a 22month custody and supervision sentence followed by a two month ISSP and a consecutive 6 months ISSP on the breach. [52] R. v. A.A., 2013 BCCA 202 , the appellant was sentenced as a youth under the YCJA after pleading guilty for incest andsexual assault with respect to his half-sister.

A.A. was 16 when he forced sexual intercourse on and impregnating the 13-year old victim.The young indigenous offender came from a “dramatically disadvantaged background.” The trial judge imposed a sentence of 120 daycustody and supervision order, an intensive support and supervision program for two years, and a concurrent probation order for twoyears. The Court of Appeal found the sentencing judge erred in principle in several respects. First, the judge relied improperly ondenunciation as an applicable sentencing principle under the YCJA in force at the time of the offence.

Second, the judge appears to havefailed to give sufficient, if any, consideration to the appellant's indigenous background. Third, the sentencing judge failed to consider allalternatives to custody, before imposing a custodial element to the sentence. Fourth, the sentence as crafted exceeded the maximumsentence that can be imposed under the YCJA and therefore illegal. [53] The appellate court was satisfied custody and supervision was available to the sentencing judge under s. 42(2)(

n) because theoffence was violent (s.39(1)(a)). Other options also included a deferred custody and supervision order (s.42(2)(p)), an intensivesupervision and support program (s.42(2)(1)), and a probation order (s.42(2)(k)). The maximum sentence for a single offence is twoyears, each part of which comes into effect on the date on which it is imposed, unless otherwise specified. The appellate court stated atpara 16: I accept that a fit sentence must take into account the harm done to the victim. The offence violated the sexual integrity of a vulnerableyoung girl and has caused her serious psychological harm.

It is troubling that the appellant has not adequately accepted personalresponsibility for his conduct. [54] Nonetheless, the Court of Appeal substituted a sentence of six months deferred custody and supervision order with a concurrenttwo-year intensive supervision and support program. The Court stated at para 20 that: [t]he resort to a DCSO in this case is warranted . . . because in my view it is consistent with the principles and purposes set out in s. 38 ofthe Act and on the restrictions on custody set out in s. 39.

Most particularly, a DCSO is necessary to hold the appellant accountable forthe offence by imposing a sanction that has meaningful consequences to him. Moreover, it will promote his rehabilitation andreintegration into society and contribute to the long-term protection of the public. [55] The appellate court did not engage in any discussion as to whether a deferred custody and supervision order was available to ayoung offender found guilty of a serious sexual offence. [56] Still, in R. v.

S.N.J.S., 2013 BCCA 379, the BC Court of Appeal held (at para. 28) that sentencing under the YCJA is not entirely“offender-centric” because it speaks of the importance of accountability and meaningful consequences. : [29] “Accountability” is not defined in the Act, but must be understood in part to be concerned with the severity of the sentence inrelationship to the seriousness of the offence. Holding a young person “accountable” must also be understood to include consideration ofwhether the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society. While s. 38(1)(

d) and (

e) dorequire the Court to impose the least restrictive sentence possible, this does not mean, as the appellant contends, that the “leastrestrictive” requirement should be read independently from the other principles and purposes in the Act, particularly “accountability”.This notion of accountability includes consideration of the seriousness of the offence and requires a sentencing judge to balance andmatch the rehabilitative needs of the young person, with the other purposes and principles of sentencing. . . [57] In R. v. J.C.S., 2017 BCCA 87 , the B.C.

Court of Appeal dismissed the defence appeal of a three-year IntensiveRehabilitative Custody and Supervision Order (“IRCSO”) for manslaughter pursuant to s. 42(2)(

r) of the YCJA. The trial judge orderedthe appellant to serve the first 12 months of the IRCSO in an open continuous rehabilitative custody and the remaining 24 months undercommunity supervision. The appellant challenged the sentence to the extent that it requires him to serve the first 12 months in opencustody. Mr. Justice Fitch, for the appellate court, confirmed at para. 71 the youth court judge’s analysis which took into consideration: a. Section 38(2)(

e) of the YCJA holds that a youth sentence must be (

i) the least restrictive sentence most likely to (ii) rehabilitate andreintegrate the young person into society (iii) while promoting responsibility and acknowledging harm done to victims. These principlesare subject s. 38(2)(

c) and the need to impose a sentence proportionate to the seriousness of the offence and the degree of responsibilityof the young person for that offence; b. Sections 38(2)(e)(i), the least restrictive sentence and (ii) most likely to rehabilitate and reintegrate the young person, do not takepriority over (iii), which is to promote a sense of responsibility in the young person, and an acknowledgement of the harm done tovictims and the community. A youth court judge must take into account and weigh all these goals; c. The YCJA is not entirely “offender- centric”; d. The utilitarian goals of sentencing including specific deterrence and denunciation must be taken into account along with the

important goal of rehabilitation and reintegration; e. While ss. 38(2)(

d) and (e)(

i) require youth court justices to consider all available sanctions other than custody that are reasonable inthe circumstances and, subject to the proportionality principle, impose the least restrictive sentence capable of achieving the purposes setout in s. 38(1), these requirements cannot be read independently from the other purposes and principles set out in the YCJA; and f. Promoting accountability may require balancing the rehabilitative needs of the young person with the other purposes and principlesof sentencing. [58] In R. v.

P.I., 2018 ONCJ 324 the 17-year-old indigenous offender pled guilty to one count of sexual interference of a11-year-old girl, and one count of breach of a probation order. The offence occurred in 2014. At the time of the offence, P.I. was onprobation for committing a sexual offence when he was 16 against a 13-year-old girl. P.I. had experienced a series of tragedies in his life.The psychological reports indicate he had a drug and alcohol problem which he downplayed and was functioning within the low averagerange of intelligence.

The Crown and Defence jointly submitted a six month deferred custody and supervision order followed by twoyears’ probation. The sentencing judge considered ss. 42(5) of the YCJA and concluded a deferred custody and supervision order was notavailable in that case. Section 42(5)(

a) holds a DCSO many not be imposed if the young person is convicted of an offence in which hecauses or attempts to cause serious bodily harm. Justice Doody noted that “serious bodily harm” is not defined in the YCJA or theCriminal Code. Justice Doody adopted the definition set out in R. v.

C.D., 2005 SCC 78 wherein the Supreme Court of Canadaconsidered the words "serious bodily harm", in the context of the definition of "serious violent offence" and determined they meant “anyhurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, healthor well-being of the complainant” (at paragraph 20). [59] Justice Doody referenced R. v. J.A.H., 2016 MBCA 58, in which the Manitoba Court of Appeal held that the facts admitted bythe young person when he pled guilty, on their own, established serious bodily harm.

The young person had admitted that he had forcedsexual intercourse or sodomy with the victims. The Court, relying on Cory J.’s judgment in R. v. McCraw, (SCC), heldthat these acts, by their very nature, cause or attempt to cause serious bodily harm to victims. The Court wrote: [26] … certain facts need not be proven by the calling of evidence because they are sufficiently undeniable to notice judicially (see R vFind, 2001 SCC 32 at para 48, [2001] 1 SCR 863). In our view, it is beyond reasonable dispute that perpetrating major sexual assaultsagainst young children causes them to suffer serious bodily harm.

It is therefore not necessary for the Crown to tender victim impactstatements from each of the 5 young victims, or to call them to the witness stand, or to call an expert to prove that the child sufferedserious physical or psychological harm.

This is also in line with the modern approach to the evidence of young victims of favoringprocedures and practices which will reduce the "likelihood of inflicting further injury on a child as a result of involvement in the criminalprocess" (see R v F (CC), (SCC), [1997] 3 SCR 1183 at paras 29, 41). [27] In the result, we are of the view that it can be inferred or presumed that forced anal and/or vaginal penile penetration committed onyoung children causes or attempts to cause serious bodily harm on the victims.

In such circumstances, a youth court is precluded fromimposing a DCSO and that leaves, in practical terms, as the only realistic sentence, a custody and supervision order (see R v KC, 2011ONCA 257 at para 26, 276 OAC 267). [28] The Manitoba Court of Appeal’s decision in J.A.H. was followed in R. v. J.B., 2017 ONCJ 542. In that case, the young person hadbeen found guilty of sexual assault and forcible confinement.

Wakefield J. declined to follow earlier decisions which had required theCrown to prove serious bodily harm by introducing victim impact statements or other evidence which established that the victim hadfrom specific diagnosed psychological disorders, disabilities or other infirmities that have been connected to the assault by treatingprofessionals. (R. v. S.(B.), 2017 MBPC 23; R. v. K.S., 2016 YKTC 23).

He wrote: 49 In my view, with respect to those courts with contrary findings, there is now more than sufficient appellate authority as to thepsychological consequences of sexual assaults and especially forced intercourse for me to infer the existence of serious bodily harm fromthe offence and factual underpinnings without any ancillary evidence or testimony and I find that the Crown has met its onus from thatalone. [60] Justice Doody imposed a sentence of four weeks in secure custody followed by two weeks community supervision.

The brevityof the custodial portion of the sentence was driven by the fact that offender was almost 20 when sentenced. This meant that he wouldserve most of a custodial sentence in the local overcrowded adult jail which had few rehabilitative programs. Analysis [61] I acknowledge the sentencing regime under the YCJA is completely different from that established under the Criminal Code. TheYCJA is based “on recognition of the presumption of diminished moral blameworthiness of young persons and on their heightenedvulnerability in dealing with the justice system”: see s. 3(1)(

b) of the YCJA and R. v. S.J.L., 2009 SCC 14 at para. 64. Although theprinciples of specific denunciation and deterrence have been included in the YCJA since October 23, 2012, the sentencing principle ofgeneral deterrence found in s. 718(1)(

a) of the Criminal Code is not applicable under the YCJA: S.N.J.S. [62] The YCJA places mandatory restrictions on the use of custodial sentences. Section 38(2)(

d) of the YCJA states “all availablesanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particularattention to the circumstances of aboriginal young persons.” Section 50(1) of the YCJA states in part: Application of

Part XXIII of Criminal Code 50

(1) Subject to

section 74 (application of Criminal Code to adult sentences),

Part XXIII (sentencing) of the Criminal Code does notapply in respect of proceedings under this Act except for paragraph 718.2(e) (sentencing principle for aboriginal offenders), sections 722(victim impact statements) . . . [63] In R v Friesen, 2020 SCC 9, the Supreme Court of Canada was asked to consider the appropriateness of a starting point or range

in sentencing in the context of sexual offences against children by an adult offender. The Court emphasized (at para. 76) that sexualoffences against children are inherently wrongful and “always put children at risk of serious harm, even as the degree of wrongfulness,the extent to which potential harm materializes, and actual harm vary from case to case”: Friesen, para. 76. In considering theappropriate sentence I reviewed those factors the Supreme Court of Canada in Friesen considered significant when determining a fitsentence for sexual offences against children.

Factor #1: risk of reoffending [64] Firstly, I must consider the likelihood of B.T.L. reoffending. In this case I find the following mitigating: a. B.T.L. has no criminal record; b. B.T.L. was only 14 at the time of the offence; c. B.T.L. has pled guilty sparing S.P. the trauma of testifying as well as saving court time and judicial resources; d. B.T.L. has indicate his willingness to engage in treatment; and e.

B.T.L. has the support of his family in the community. [65] Considering the Presentence and Youth Forensic reports and the mitigating factors set out above, I find that although B.T.L. doespresent a risk to reoffend, I cannot say it is a significant risk. This militates against a custodial sentence. Factor #2: abuse of a position of trust [66] The second Friesen factor in determining a fit sentence for a sexual offence against a child is whether the offender abused aposition of trust (e.g. R. v. S.G.F., 2007 BCPC 168 ).

The presence of this factor increases the harm to the victim and thus thegravity of the offence, and it also increases the offender’s degree of responsibility: Friesen, paras. 125-130. In this case, B.T.L. was notin a position of trust or authority vis-à-vis S.P. She was B.T.L.’s cousin, however, I do known know their degree of consanguinity.B.T.L.’s was not a member of S.P.’s immediate family or her caregiver and the sexual activity did not occur in her home.

Factor #3: frequency and duration of the abuse [67] The third Friesen factor is the frequency and duration of the sexual abuse: Friesen, paras. 131 – 133 (e.g. R. v. C.V.S., 2010BCPC 71 ). The Courts have held that sexual violence against children over a long period of time and repeated on multipleoccasions should attract significantly higher sentences to reflect the full cumulative gravity of the crime and the offender’s increaseddegree of responsibility. In the case, in the Admissions of Fact filed as Exhibit 1 indicates there was one incident of sexual abuse.

Factor #4: age of the victim [68] The fourth Friesen factor is the age of the victim. Children who are particularly young are even more vulnerable to sexualviolence, thereby enhancing the offender’s moral blameworthiness (e.g. R. v. S.G.F. and R. v. C.V.S.). In this case, had S.P. was 13, oneyear younger than B.T.L. Had she consented to the sexual activity, B.T.L. would not have been charged by operation of s. 150.1(2)which holds that for a 12 or 13 year old complainant, consent is a defence to a charge of sexual assault if the accused is less than twoyears older than the complainant.

Factor #5: degree of physical interference [69] The fifth Friesen factor is the degree of physical interference. In the Admissions of Fact, filed as Exhibit 1 at the trial, B.T.L.admits that when engaging in sexual intercourse, he would insert his penis into S.P.’s vagina. He did not wear a condom. The SupremeCourt recognizes that relevant to sentencing in these types of cases is the sexual nature of the touching and its violation of the victim’ssexual integrity. Penile penetration can create a risk of disease and pregnancy, particularly if unprotected.

Nevertheless, Friesen cautionsthe sentencing courts against establishing a hierarchy of physical acts or treating penetration as the most egregious conduct. The modernfocus is not so much on bodily integrity, but rather on the psychological and emotional harm to the child: Friesen, para. 135. Theseharms include damage to the victim’s personal autonomy, bodily and sexual integrity, dignity and equality, to their relationships withtheir families and communities, and harms to the families, communities and society. [70] In this case, B.T.L. forced sexual intercourse with S.P. against her will.

As S.P. discloses, the offence had a significant impact onher physical, psychological and emotional well-being. S.P. was 13 years old at the time of the offence. She was scared and crying andtelling B.T.L. to stop. She attended with her mother to the hospital for a sexual assault examination. She provided a statement to thepolice giving rise to these charges. It has been almost three years since the offence, and S.P. is still suffers from profound emotional andpsychological harm. [71] In my view, the fact her assailant was only 14 years old does not necessarily diminish the impact of the offence on S.P.

Factor #6: the victim’s participation [72] The sixth Friesen factor is a child victim’s participation is not mitigating, nor even a legally relevant consideration at sentencing.In Friesen, (at para. 150) the Supreme Court cautioned that a victim’s participation should not distract the court from the harm that thevictim suffers as a result of sexual violence. [73] In this case, because S.P. was only one year younger than B.T.L., she could have legally consent to their sexual activity, but shemost emphatically did not. Factor #7: offender’s indigenous heritage

[74] Also relevant to determining the appropriate sentence for B.T.L. is his indigenous heritage (e.g. R. v. A.A., 2013 BCCA 202). InFriesen, the majority stated: [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and [R. v. Ipeelee, 2012 SCC 13]. The sentencing judge must apply these principles even in extremely gravecases of sexual violence against children (see Ipeelee, at paras. 84-86).

The systemic and background factors that have played a role inbringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a differentor alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). [75] Gladue and Ipeelee, are the governing cases with respect to how s. 718.2(

e) of the Criminal Code and 38(2)(d)) of the YCJAshould be applied and establish the framework for sentencing Indigenous offenders. The judge has a statutory duty imposed by s.718.2(

e) to consider the unique systemic and background factors which may have played a

part in bringing the particular offender beforethe court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular Indigenousheritage. The offender is not required to establish a causal link between background factors and the commission of the offence beforebeing entitled to have those factors considered by the sentencing judge. Judges may take judicial notice of the broad systemic andbackground factors affecting Indigenous people generally and case-specific information from the offender in the presentence reports.

Anoffender’s Indigenous heritage is often considered a special and mitigating factor for sentencing purposes: see Sheck v. Canada (Ministerof Justice), 2019 BCCA 364 . [76] I am acutely aware of the challenges facing Indigenous people in this northern region. I accept the systemic and backgroundfactors affecting Indigenous people in Canadian society have likely impacted B.T.L.’s life in such a way as to diminish his moralculpability. I accept those factors, both systemic within society and specific to B.T.L. played a role in his anti-social and criminalbehaviour.

Factor #8: offender’s mental health [77] In Friesen, the Supreme Court held (at para. 91) that an offender’s mental disabilities may also have a mitigating effect: [91] . . . First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, theoffender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders canhave a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likelyhave reduced moral culpability (R. v.

Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th)269, at para. 180). Conclusion on sentencing [78] In P.I. and C.V.S., Judge Frame and Justice Doody adopted the meaning of “serious bodily harm”” from the Supreme Court ofCanada decisions’ in R. v. C.D. 2005 SCC 78 and R. v. McCraw, (SCC).

These authorities indicate that for the purposesof s. 42(5) of the YCJA, the words “serious bodily harm” means any “hurt or injury, whether physical or psychological, that interferes ina substantial way with the physical or psychological integrity, health or well-being of the complainant. The enduring emotional andpsychological harm caused by these offences can be gleaned from S.P.’s Victim Impact Statement and “presumed” from thecircumstances of the offence as set out in Exhibit 1: R. v.

J.A.H., 2016 MBCA 58, at paragraphs 26 and 27, cited in P.I. [79] I am satisfied a custody and supervision order is available for the offence of sexual interference involving intercourse. It is aviolent offence. The question remains is whether a DCSO is also available. But for the BC Court of Appeal case in R. v. A.A., 2013BCCA 202, I would have thought not. Yet, I do not regard the sexual offence for which B.T.L. is being sentenced as more serious oreven as serious as the one committed in A.A., in which the B.C. Court of Appeal imposed a deferred custody and supervision order.

Itbears reiteration that A.A. involved an offence which predated the inclusion of 38(2)(

f) in the YCJA. Moreover, although the appellatecourt accepted the offence caused a vulnerable young girl serious psychological harm, it did not discuss whether the sexual assaultcaused her “serious bodily harm” and therefore precluded by s. 42(5). [80] However, even if a DSCO is not available, it does not mean that a custody and supervision order must be imposed. [81] I note that s. 42(2)(

n) of the YCJA specifies that a youth who is subject to a sentence of custody and supervision is subject tosupervision in the community under the mandatory terms of s. 97 and that, at the time of sentencing, the court may impose otherconditions under s.97(2). [82] B.T.L. was only 14 years old. He has no prior convictions and has not demonstrated a pattern of violent behaviour, although hehas shown reluctance in complying with directions of his Youth Worker. I not prepared to impose a six month deferred custody andsupervision order sought by the defence given the divergent authorities.

I am not convinced a DCSO is statutorily available to a youngperson found guilty of a serious sexual offence since the inclusion of s. 38(2)(

f) of the YCJA on October 23, 2012. I conclude the seriousand violent nature of the offence B.T.L. committed against S.P. precludes the Court from imposing an alternative to a custodial sentence. [83] The defence submits that if I find a DCSO is not available and a custodial sentence is necessary, that it be for 90 days or less soB.T.L. can qualify for the Camp Trapping program commencing in January 2021. I do find a custodial sentence necessary.

I am satisfieda 90-day custody and supervision order served concurrent with a two-year intensive support and supervision program is best suited topromote B.T.L.’s rehabilitation and is in harmony with all the YCJA’s principles and purpose. [84] Sexual interference (s. 151 of the Criminal Code) is a primary designated offence where the Crown has, as in this case,proceeded by indictment. I will make a mandatory DNA order as well as a firearms prohibition pursuant to s. 51(3) of the YCJA. Disposition Custody and Supervision Order

[ 85 ] For the offence of touching for a sexual purpose as charged under Information 5177-1, I sentence you to a 90 days custody and supervision. You will serve 60 days in open custody followed by 30 days in the community on the following terms and conditions: a. You will keep the peace and be of good behavior; b. You will appear before the Youth Justice Court when required by the Court to do so; c.

You will report immediately upon your release from custody, either in person or by telephone, to the Youth Worker at the Youth Probation Office located at 1040 Third Avenue, Prince George BC, and after that you will report as directed by your Youth Worker; d. You will inform the Youth Worker immediately on being arrested or questioned by the police; e. You will report to the police, or any named individual, as instructed by the Youth Court Worker; f.

You will reside nightly at a residence approved by the Youth Worker and you will not change your residence at anytime without first obtaining the written consent of the Youth Worker; g. You will obey all rules and regulations of your residence; h. You must allow the Youth Worker to conduct a home visit to verify the appropriateness of your permanent residence; i. You will obey a curfew by being inside of your residence or on the lot on which your residence is located between the hours of 10 p.m. and 6 a.m. each day except as follows: (

a) with the written consent of the youth worker obtained in advance. Such consent is to be given only for compelling personal, family, or employment reasons and (

b) in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward; j. You will present yourself at the door of your residence when any peace officer or youth worker attends there for the purpose of determining your compliance with the curfew conditions of this order; k. You will respond personally and immediately to the telephone when a peace officer or youth worker makes a telephone call to your residence for the purpose of determining your compliance with the curfew conditions of this order; l.

You shall have no contact or communication, directly or indirectly, with S.P.; m. You will not attend at, or be within 100 meters of any place you know to be the residence, school or workplace of S.P. except as follows: i. With the advance written consent of the Youth Worker; ii. While on a highway in a moving vehicle in transit to somewhere else; n. You will not consume alcohol, drugs or any intoxicating substances except in accordance with a medical prescription; o. You will attend, participate in and successfully complete any assessment, counseling or program as directed by the Youth Worker.

Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to: i. therapy and treatment for youth who have offended sexually; ii. a full-time attendance program for youth who have offended sexually;, iii. psychiatric and psychological health; iv. life skills and behavior management programming; v. anger management; and vi. substance abuse management; p.

You are not to own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the Youth Worker for the purposes of participating in a program specified in the authorization; and q.

You will not possess any knife outside of your residence except for the immediate preparation or eating of food, or except as authorized by the Youth Worker for the purposes of participating in a program specified in the authorization. [ 86 ] For the offence of touching for a sexual purpose as charged under Information 5177-1, you will also be subject to an Intensive Supervision and Support Program for a period of two years, commencing immediately, on the following conditions: a. You will keep the peace and be of good behavior; b.

You will appear before the Youth Justice Court when required by the Court to do so; c. You will report immediately on your release from custody, either in person or by telephone, to the Youth Worker at the Youth Probation Office located at 1040 Third Avenue, Prince George BC, and after that you will report as directed by your Youth Worker;

d. You will inform the Youth Worker immediately on being arrested or questioned by the police; e. You will report to the police, or any named individual, as instructed by the Youth Court Worker; f. You will reside nightly at a residence approved by the Youth Worker and you will not change your residence at anytime without first obtaining the written consent of the Youth Worker; g. You will obey all rules and regulations of your residence; h. You must allow the Youth Worker to conduct a home visit to verify the appropriateness of your permanent residence; i.

For the first six months of this Intensive Support and Supervision Program, you will obey a curfew by being inside of your residence or on the lot on which your residence is located between the hours of 10 p.m. and 6 a.m. each day except as follows: (

a) with the written consent of the youth worker obtained in advance. Such consent is to be given only for compelling personal, family, or employment reasons and (

b) in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward; j. You will present yourself at the door of your residence when any peace officer or youth worker attends there for the purpose of determining your compliance with the curfew conditions of this order; k. You will respond personally and immediately to the telephone when a peace officer or youth worker makes a telephone call to your residence for the purpose of determining your compliance with the curfew conditions of this order; l.

You will have no contact or communication, directly or indirectly, with S.P.; m. You will not attend at, or be within 100 meters of any place you know to be the residence, school or workplace of S.P. except as follows: i. with the advance written consent of the Youth Worker; ii. while on a highway in a moving vehicle in transit to somewhere else; n. You will not consume alcohol, drugs or any intoxicating substances except in accordance with a medical prescription; o. You will attend, participate in and successfully complete any assessment, counseling or program as directed by the Youth Worker.

Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to: i. therapy and treatment for youth who have offended sexually; ii. a full-time attendance program for youth who have offended sexually; iii. psychiatric and psychological health; iv. life skills and behavior management programming; v. anger management; and vi. substance abuse management; p.

You are not to own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the Youth Worker for the purposes of participating in a program specified in the authorization; q. You will not possess any knife outside of your residence except for the immediate preparation or eating of food, or except as authorized by the Youth Worker for the purposes of participating in a program specified in the authorization; and r.

You will attend, participate, obey all rules and regulations, and successfully complete the Intensive Support and Supervision Program, to the satisfaction of the Youth Worker. [ 87 ] Pursuant to s. 119(1) (s)(ii) of the YCJA , this Court orders a release of all completed psychological assessment and reports to the Youth Worker (Youth Probation Officer) for the purposes of assisting with case management. [ 88 ] Sexual interference is a primary designated offence for the purposes of s. 487.05(1) of the Criminal Code .

As such, there will be an order authorizing the taking of the number of samples of your bodily substances as is reasonably required for the purpose of forensic DNA analysis.

The samples will be taken from you while you are in open custody and you must submit to the taking of the samples. [ 89 ] Pursuant to s.51(2) of the Youth Criminal Justice Act , you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances for two years. [ 90 ] For breaching your undertaking as charged under Information 5177-2- A , I accept your guilty plea to that offence and I find you guilty of that offence.

I sentence you to one day in custody, which has been served by your time spent in pre-sentence detention from May 19, 2020 to May 25, 2020, inclusive. [ 91 ] A copy of these Reasons for Sentence will be provided to B.T.L.’s Youth Worker Unger.

_____________________________ The Honourable Judge J.T. Doulis Province of British Columbia CORRIGENDUM - Released February 9, 2021 In the Reasons for Sentence dated October 7, 2020, the following changes have been made: [1] In paragraph [1] where it states: B.T.L. pled guilty to the offence of sexual assault on March 4, 2020. It should read: B.T.L. pled guilty to the offence of sexual interference on March 4, 2020. _____________________________ The Honourable Judge J.T. Doulis Province of British Columbia