R. v. K.T.J. Date:, 2013 BCPC 195

Citation: R. v. K.T.J. Date: 20130703 2013 BCPC 0195 File No: 2973-2-B Registry: West. Comm. IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.T.J. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: B. Penty Counsel for the Defendant: R. Schwartz Place of Hearing: Victoria , B.C. Date of Hearing: July 3, 2013 Date of Judgment: July 3, 2013

[ 1 ] THE COURT: The young person, K.T.J., is before me in custody having been arrested on a warrant in the first instance. She is charged with the offence of breaching a court order. [ 2 ] It is common ground that on March 6th, 2013, this young person was granted a conditional discharge and placed on conditions with which she was bound to comply over the course of the next six months.

One of those conditions required her to abstain from the consumption of alcohol. [ 3 ] The Crown alleges that on a chronic basis between March 19th, 2013, and June 21st, 2013, the young person was using and abusing alcohol in serious fashion and essentially behaving in an entirely noncompliant fashion with the sentencing order. [ 4 ] The Crown submits, with the benefit of supporting evidence on this application, that the young person has serious underlying emotional issues. She frequently expresses suicidal intent and she has been known to take at least some steps to carry such thoughts into action.

She apparently has serious issues with self-esteem and self-confidence, made worse by recurring family disputes and by her consumption of alcohol. [ 5 ] Although the young person has only been sentenced by this court on the one occasion on March 6th, 2013, to which I have already referred, the Crown submits that the court should consider obtaining a psychiatric or psychological assessment pursuant to s. 34(2)(

a) of the Youth Criminal Justice Act . [ 6 ] In the Crown's contemplation, the purpose of the assessment would not be to determine the young person's custodial or release status pending the outcome of the present proceeding, since there are no possible grounds for a detention, having regard to the wording of s. 29(2) of the Youth Criminal Justice Act . Rather, in the Crown's view, the assessment would allow the court to determine the sorts of release conditions that could be appropriate in this rather difficult case. [ 7 ] The Crown goes on to submit that the assessment ought to be conducted on a "in custody basis" pursuant to s. 34(4) of the Youth Criminal Justice Act . In essence, that

section provides that there is a presumption against remanding the young person in custody pending such an assessment and that a custodial remand may only occur if it is (

a) necessary to conduct the assessment or (

b) desirable and the accused consents. [ 8 ] Since the accused young person in this case does not consent, an in custody assessment could only occur if it was necessary for her to retain that status pending the assessment. [ 9 ] To further complicate matters, I am informed that an in custody assessment in this case would take place at the Burnaby youth detention centre since it is apparently not possible to conduct an assessment of the sort contemplated here for female young persons on Vancouver Island. [ 10 ] In the circumstances the Crown's application would seem to be a pretty tall order, especially given the provision in s. 29 of the Youth Criminal Justice Act that the court is not to be used as a substitute for appropriate child protection, mental health or other social measures. [ 11 ] I must say, though, that I was impressed by the evidence which was given to me on this application by Kim Rowe, the social worker, and by Cindy Hendrickson, the youth worker.

Both of those witnesses expressed legitimate concern about the fact that the young person's problems appear to be both severe and increasing such that any release plan needs the most careful form of crafting. Both witnesses expressed concern that the young person would not cooperate in the crafting of any such release terms.

They feared that she would either leave, making herself physically unavailable for any input in the process, or that she would not remain sober long enough for the process to be conducted. [ 12 ] In the circumstances, despite my grave reservations about the propriety of an assessment order under s. 34, it did seem to me that there was at least some merit to it. In the end result, though, as the Crown now concedes, the application is thwarted in any event by the surprisingly limited scope of s. 34. [ 13 ] As I have already said, the specific provision upon which the Crown relies here is s. 34(2)(

a) which provides: A youth justice court may make an order under subsection (1) [an assessment order] in respect of a young person for the purpose of (

a) considering an application under

section 33 . . . [ 14 ] On close analysis s. 33 really has no application to this case. It arises in sub-section (1) in circumstances where the young person has already been the subject of a judicial interim release order, or detention order, made by a justice who is not a youth court justice and the matter is then brought before the youth court for further consideration. It applies in other circumstances too, but none of those other circumstances have the least relevance to the matter before me. [ 15 ] In short, s. 33 does not assist the Crown.

There is no opening otherwise in s. 34(2) which would allow me to make the sort of assessment order that is being sought. [ 16 ] The matter has been the subject of a decision in the Alberta Court of Queen's Bench. The decision helpfully provided to me by defence counsel here is R. v. K. (Z.R.) , a decision of McMahon J. on July 11th, 2011, cited at 95 W.C.B. (2d) 546 . [ 17 ] The court in that case carefully considered the wording of the various sections of the Youth Criminal Justice Act and concluded

that an application of the sort contemplated there, and contemplated here, is beyond the scope of the legislation. It seems a curious omission, but I must say that I find McMahon J.'s analysis to be flawless.

I accept the reasoning in that decision. [ 18 ] I understand that the Crown counsel before me, having now considered the matter, also accepts the persuasive weight of that authority. [ 19 ] Accordingly I must dismiss the application. [ 20 ] Thank you. [SUBMISSIONS OMITTED] [ 21 ] I will release K.T.J. on her undertaking to comply with the following conditions: [ 22 ] Condition 400: You shall keep the peace and be of good behaviour. [ 23 ] Condition 401: You shall report in person to the youth worker's office at 1195 Esquimalt Road, Victoria, British Columbia at 11:30 a.m. on Thursday, July 4, 2013, and you shall report thereafter as and when directed by the youth worker. [ 24 ] Now, let me just stop there for a second.

K.T.J., I do not want you to go off-side as soon as you are out of here. You do understand that you have to report to the youth worker's office tomorrow morning at 11:30. Yes?

Okay, thank you. [ 25 ] A condition which is not actually on the standard form, you shall only be released initially into the care of Kim Rowe. [ 26 ] Condition 405A: You shall reside at a residence approved by your youth worker and you shall not change your residence at any time without first obtaining the written consent of the youth worker. [ 27 ] Condition 406: You shall obey all rules and regulations of your residence. [ 28 ] Condition 408: You shall obey a curfew by being inside your residence between the hours of 8 p.m. and 7 a.m. each day, except as follows.

a) in the company of an adult approved in writing in advance by the youth worker; or,

b) otherwise with the written consent of the youth worker. [ 29 ] 413: You shall either attend school regularly, make reasonable efforts to seek and maintain employment approved by the youth worker, or attend a day program regularly as directed by the youth worker. [ 30 ] Condition 421: You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a licenced physician. [ 31 ] Those are the conditions of release. [ 32 ] And when would you like the matter returnable? [ 33 ] MR.

SCHWARTZ: To Colwood youth court, Your Honour, Wednesday July 10th at 9:30, please. [ 34 ] THE CLERK: Nine-thirty, courtroom 1. [ 35 ] THE COURT: Okay. The matter will next be before the youth court at the Western Communities court house July 10th, 2013, at 9:30 a.m. [ 36 ] Now, K.T.J., I have heard a lot about you being either unable or unwilling to comply with your court order up to now. I have to tell you that this is another court order, and you have to meet the conditions, you cannot just blow them off.

If you do, I am not threatening, I am just telling you what will happen, you will end up right back where you are now, and the chances of you getting out become slimmer and slimmer every time that happens. Do you hear what I am saying? Okay. Thank you. [ 37 ] MS. PENTY: Thank you, Your Honour. Before we go, would Your Honour consider ordering a release of a copy of your judgment to me, and to defence counsel, so that there will be one prepared, a transcript will be prepared? [ 38 ] THE COURT: Sure, why not. [ 39 ] MS. PENTY: I think it might be helpful. [ 40 ] MR.

SCHWARTZ: It's going to get cited. [ 41 ] THE COURT: If it is all that helpful, you might want to order it yourself, but having said that, I will – [ 42 ] MS. PENTY: I might -- I might run into difficulties getting permission, because normally I'm only allowed to order transcripts when matters are on appeal. That's the only power that I have to order a transcript, that's why I'm asking the court to order a transcript. [ 43 ] THE COURT: All right, well I will order a transcript. Thank you, Madam Clerk, can you just make a note of that, I will order a transcript.

I reserve the right to edit it first for minor glitches, but that aside, yes. Copies will be made available.

(reasons concluded)