R. v. A.J.B. Date:, 2014 BCPC 306

Citation: R. v. A.J.B. Date: 20140905 2014 BCPC 0306 File No: 3822-2-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Division REGINA v. A.J.B. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: R.L. Ellsay Counsel for the Defendant: D. Marshall Place of Hearing: Courtenay , B.C. Date of Hearing: July 4 and September 5, 2014 Date of Judgment: September 5, 2014

[ 1 ] THE COURT: I will now give my decision. At the outset, I would like to say that deciding the sentence in this case has been very difficult, perhaps more difficult than any other I have had to decide. Clearly, there is no sentence which the court could impose which would turn the clock back or alleviate the suffering experienced by Molly Burton. [ 2 ] A.J.B. is charged that: . . . on the 11th day of September, 2013, at or near Courtenay, Province of British Columbia, having the care, charge or control of a vehicle that was involved in an accident with . . .

Molly Burton, and knowing that bodily harm was caused to that person, did, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address and offer assistance, contrary to Section 252(1.2) of the Criminal Code . [ 3 ] A.J.B.’s first appearance in this matter was on December 12, 2013. I note that that was shortly after the charge was laid. A.J.B. instructed his lawyer that he wished to plead guilty to the charge. He entered a guilty plea to the charge on February 6, 2014, at which time a pre-sentence report and psychological assessment were ordered.

Given the time required for disclosure to be provided to A.J.B.'s lawyer, I find that the guilty plea was entered at the earliest opportunity. A sentencing hearing was held before me on July 4, 2014, and today, September 5. [ 4 ] A.J.B. is a youth and is to be sentenced in accordance with the Youth Criminal Justice Act . [ 5 ] I will now outline the facts giving rise to the charge. [ 6 ] At the time of the offence, A.J.B. was 16 years of age and held a Class 7 learner's licence.

On September 11, 2013, at approximately 10 p.m., A.J.B., who was driving a 2005 Chrysler 3000 motor vehicle registered to his father, attended the Tim Hortons restaurant located on Ryan Road here in Courtenay. When there, he met some other people. While at Tim Hortons, A.J.B. drank some beer. There is conflicting evidence as to how much he drank. A.J.B. acknowledges drinking one beer there by "shot-gunning" it. [ 7 ] After spending a short time at the Tim Hortons, A.J.B. and others went to a McDonald's restaurant in Comox located near the intersection of Guthrie Road and Anderton Road.

A.J.B. drove to McDonald's alone in the Chrysler. [ 8 ] While at the McDonald's, A.J.B. drank some more beer. Again, there is conflicting evidence as to how much beer A.J.B. drank. He acknowledges shot-gunning a second beer at the McDonald's. [ 9 ] According to Crown counsel, one of the young people in the group at the McDonald's was concerned about A.J.B.’s sobriety and told him she thought he should not drive and offered to drive. A.J.B. denies this.

The Crown called no evidence, so I cannot accept that evidence as fact in this case. [ 10 ] As well, there was no evidence called regarding A.J.B.’s alcohol consumption. I must sentence him on the basis that he drank two beer on the evening in question. [ 11 ] After leaving the McDonald's restaurant, A.J.B. drove a friend to his girlfriend's residence on Valley View Drive in Comox. A.J.B. told the friend that he was going to drive to his cousin's residence near Lake Trail Road in Courtenay.

I heard through A.J.B.’s counsel today that A.J.B. was on his way home. [ 12 ] The accident giving rise to the hit and run charge happened at approximately 11:15 pm. At the time, A.J.B. was alone and driving the Chrysler westbound on Comox Road, which is commonly referred to as Dyke Road. He was driving from the direction of Comox towards the 17th Street bridge in Courtenay. [ 13 ] Comox Road runs in an east/west direction. It is a two-lane paved road with a speed limit of 50 kilometres per hour.

In the area where the accident occurred, the two lanes are separated by double solid lines. [ 14 ] On the south side of Comox Road and adjacent to the accident location is a tidal estuary where the Courtenay River flows into the ocean. At the time of the accident, the road was dry. It was dark, but the sky was clear. [ 15 ] The accident occurred when A.J.B. failed to negotiate a counter-clockwise curve in the road causing the Chrysler to strike a concrete no-post barrier on the north side of the road.

The Chrysler bounced off the concrete barrier, travelled across both lanes, and struck a pedestrian, Molly Burton. Molly Burton, who is in her twenties, had been walking towards Comox on the eastbound shoulder of the road. She had been at a movie in Courtenay and was walking home to her residence in Comox. [ 16 ] Molly Burton was thrown a considerable distance upon being struck by the car. She landed in a ditch between the roadway and the tidal estuary. She landed in bramble bushes.

Molly Burton was severely injured and was unable to move herself from the spot where she landed. [ 17 ] The accident caused significant damage to the Chrysler. A.J.B. realized that the vehicle he was driving struck and injured a pedestrian but did not stop to offer assistance. A.J.B. drove the significantly damaged Chrysler a few kilometres from the accident scene and then abandoned it in Courtenay. [ 18 ] At approximately 12 o'clock midnight, three of the young people whom A.J.B. had been with earlier in the evening were outside Arden Elementary School on Lake Trail Road in Courtenay.

They saw A.J.B. driving the Chrysler up the road. They saw that one of the vehicle's tires was missing. The vehicle was driving on the wheel rim, causing sparks to fly. The three followed the Chrysler up Lake Trail Road and located it abandoned at the intersection of Comox Logging Road and Bevan Road. It was clear to them that the vehicle had been involved in a collision. When they came upon the vehicle, A.J.B. was not inside it. They called for A.J.B. and soon saw him walking along the road. He was crying and said, "I fucked up."

[ 19 ] A short time later, A.J.B.’s parents arrived. I have heard different versions as to what A.J.B. said to his parents. I heard through defence counsel that A.J.B. told his parents that he hit a deer or something on the Comox Road and that his parents returned there and tried to see if they could find whatever it was that was struck and were unsuccessful. [ 20 ] At this time, while A.J.B. was speaking to his friends and speaking to his parents, Molly Burton remained lying in the brambles in the ditch next to Comox Road, unable to move.

Although several people heard a collision and/or heard Molly Burton cry out, and although the police had attended the area, it was four hours and 40 minutes after the accident before she was found. She was found by a man named Brody Fullerton. He was on his sailboat in the water across from where Molly Burton lay when he heard her cries. He rode his bicycle across the 17th Street Bridge and tried to locate her. After he got near her and they yelled back and forth for a time, he found her. That was 3:56 a.m. Brody Fullerton phoned for help.

The police and ambulance attendants arrived shortly. [ 21 ] Molly Burton was taken by ambulance to the St. Joseph's Hospital and was then flown by helicopter to the Victoria General Hospital. [ 22 ] After Molly Burton was located, the police searched for the vehicle which had struck her. The police observed vehicle debris along 5th Street in Courtenay and followed it. At approximately 5 o'clock a.m., they located the Chrysler at the location where A.J.B. had abandoned it. [ 23 ] At 5:27 a.m., RCMP Sergeant Barry Noonan, a collision reconstructionist, arrived at the accident scene.

He was not able to calculate the speed at which the Chrysler was travelling when it struck the concrete barrier or Molly Burton. He was, however, able to determine that upon being struck, Molly Burton was thrown and accelerated to a speed between 32 and 40 kilometres per hour. Therefore, at the time the Chrysler struck Molly Burton, it was travelling at least 32 kilometres per hour. [ 24 ] Sergeant Noonan examined the Chrysler at approximately 11 a.m. on September 12. He found that it had extensive damage to the front right wheel fender area. The front tire was missing.

The rim was worn flat along the circumference and had chunks missing out of it. It was obvious to Sergeant Noonan that the Chrysler had been driven a distance on the rim. [ 25 ] Sergeant Noonan determined that Molly Burton was struck by the left front of the Chrysler. The collision with her caused damage to the left front fender, the windshield, the left A-pillar, and the left external mirror of the Chrysler. [ 26 ] Molly Burton suffered what can only be described as very severe injuries. Her life will never be the same. Molly Burton prepared a lengthy victim impact statement which she read to the court.

Molly Burton’s mother, father, and sister also prepared and read victim impact statements to the court. [ 27 ] It is clear from the victim impact statements that the accident has caused Molly Burton enormous pain and suffering. Her suffering has been and still is both physical and emotional. [ 28 ] Had A.J.B. stayed at the scene of the accident or promptly reported the accident and its location, Molly Burton would not have suffered for those initial hours as she did. [ 29 ] I will quote a portion of Molly Burton’s victim impact statement describing her experience immediately following the collision.

This is while she was laying in the ditch for four hours and 40 minutes until she was found. …I woke sometime later in a state of complete confusion and shock. It was so, so dark and I was so, so cold. I have never been so alone. I screamed for helped. I screamed until I damaged my vocal cords. I had been completely abandoned in the cold and the dark. The pain was so excruciating that even the wind moving the blackberry branches I was tangled in sent shooting pain through me. No one came. I couldn't see, so I felt my way around. I started ripping branches away from my arms, shredding the skin on my hands.

My shoulder was pinned to the ground and in my delirious state I felt around for the cause. I wanted to drag myself to the road. I was convinced there was a leech lying along the ground, holding me down. I tried to work my nails around the edge of it so I could pluck it off and be free. I was terrified and trapped. It was my own shoulder muscle I was clawing at. I wasn't thinking so much about dying as about never being found. Being abandoned forever. Having this terror and freezing cold aloneness in the pitch black stretch on forever … There was very little relief when I was found.

It did not end, I did not feel safe, I still don't feel safe. [ 30 ] In his pre-sentence report, Probation Officer Kevin Rushton sets out what Molly Burton reported to him about her injuries and the impact of the accident. I know this description does not describe all of the injuries, but it gives the reader a good idea of the severity of the injuries. Kevin Rushton wrote as follows in his report: Molly Burton reports that she has nerve damage in her right arm and in her left leg. Her elbow was broken and shattered.

She reports that a bone was protruding through her shoulder and [the] muscle in her arm was pulled away. Her fibula and tibia were broken with the tibia broken in several places. The bones were both protruding through her skin in several places and that ligaments were torn from her ankle. Covered in cuts from the blackberry bushes, thorns were embedded and have slowly been working their way out of her skin since the accident.

Molly Burton reports that she was initially in hospital in Victoria for 5 weeks …[and that] she endured 6 or 7 surgeries in order to repair the extensive damage to her right arm and left leg … …Molly Burton states that doctors have told her that she will have a permanent limp.

He writes further: Molly Burton advises that she has to sleep with the light on for fear of the dark which creates anxiety. She is taking anti-depressants which help with her anxiety. [She] indicates that as a result of the trauma that she has experienced she is seeing a counselor … [ 31 ] I will now address the background of the accused, A.J.B. [ 32 ] A.J.B. is now 17 years old. He was born in Comox on December 25, 1996. He has grown up on a family farm consisting of several hundred acres. His family has a long history of dairy farming in the Comox Valley.

A.J.B. is the youngest of four children born to H.B. and T.B. A.J.B. has some aboriginal heritage. His father, H.B., is a member of the Ulkatcho Band at Anahim and was adopted by the B’s. A.J.B. is not involved with the aboriginal community or culture but has travelled to the Anahim area and met some relatives. [ 33 ] It seems from the reports that A.J.B. had a happy and active childhood. He has grown up in a home free of family violence and/or substance abuse. According to the pre-sentence report, his parents describe him as a good kid with whom they seldom had trouble at home.

They reported that he is a hard worker on the farm. They indicated that he is not a person with a very active social life and said that he has chosen to spend much of his time on the farm either working or riding motorized vehicles on the property. [ 34 ] It is clear from what I have read and heard as well, that since this terrible accident, A.J.B. has somewhat isolated himself from friends and others. [ 35 ] A.J.B. attended a local elementary school from kindergarten to grade 7. For the first few years, he was minimally meeting grade expectations with below age-appropriate expectations for reading and writing.

He was assessed by the school district in grade 4. The assessment revealed that he had difficulty sustaining his attention and identified him as having a learning disability. [ 36 ] The pre-sentence report states that school records indicate that A.J.B. continued to have academic difficulties in grades 5, 6, and 7. Beginning in grade 6, concerns were expressed about his behaviour in school. [ 37 ] A.J.B. attended a local junior secondary school for grade 8.

According to the pre-sentence report, school records indicate continued academic and behavioural issues. [ 38 ] In September of his grade 9 year, he withdrew from the junior secondary school and he went to an alternate school. It seems that this change into a different school setting was a positive thing for him. [ 39 ] The principal at the alternate school advised the probation officer that he does not remember having to address any behavioural problems with A.J.B. and explained that the school offered behavioural aides, a lower teacher ratio, and a more individual program.

He does recall, however, that poor attendance was an issue. One instructor reported that A.J.B. clearly had a significant learning disability and recalled he had difficulty in all academic subjects. She reported him as always being polite and cooperative with her. She stated the most significant issue was his poor attendance. [ 40 ] I understand that A.J.B. is one course short of completing grade 10 and that his hope is to re-attend school and to complete his high school education. [ 41 ] Presently, A.J.B. is not enrolled in school.

He has had no formal employment outside of working on the family farm where he has worked steadily. He is paid $15 per hour for working on the farm. He says that he would like to farm as a career. [ 42 ] According to the pre-sentence report, incidents of concern involving A.J.B. riding motorized vehicles first came to the attention of the police when he was just 10 years of age. Since that time, he has acquired a considerable Motor Vehicle Act driving record.

I note that the driving infractions did not involve him driving a car or truck but involved him driving dirt-bike motorcycles, all-terrain vehicles, and go-carts. [ 43 ] I note, as well, that on the farm on which A.J.B. grew up and where he still lives, there were many all-terrain vehicles, dirt-bike motorcycles, and other vehicles, and that while he was driving on public roads when caught and given tickets for these infractions, for the most part he was driving public roads connecting his parents' farm property, with various trails. [ 44 ] A.J.B.’s driving record contains 12 violations, including driving offences of driving without insurance, riding a motorcycle without the required helmet, driving without the required licence, and failing to stop for police.

On August 29, 2012, when A.J.B. was 15 years of age, he was prohibited from driving by the Superintendent of Motor Vehicles for a period of six months due to an unsatisfactory driving record.

This was before he was even old enough to obtain a learner's driver's licence. [ 45 ] I note as well that it is significant that since his six-month driving prohibition, which ended in February of 2013, A.J.B. has had no more Motor Vehicle Act driving infractions. [ 46 ] Although A.J.B. has a Motor Vehicle Act driving record, he has no criminal record. [ 47 ] A number of favourable letters were submitted into evidence by A.J.B.’s lawyer, Mr. Marshall. Mr. Marshall submitted that the letters written by those who know A.J.B. well provide the most accurate picture of who his client is.

I have reviewed all of the letters and will not refer much to them, but would like to quote from two of them. First, there is a letter which was prepared and signed by A.J.B.’s parents. In that letter, they write as follows: The offence A.J.B. has been charged with has brought our family to the lowest point in our lives. He knows he has made awful mistakes, ones he will have to live with for the rest of his life. A.J.B. is not the same person he was before the accident. The energetic, humorous

person he once was is slowly starting to come back with the support of family, friends and a counsellor. We can only hope that the same will happen for the victim and family, that she will make a full recovery mentally and physically. A.J.B. is trying very hard to gain back the respect from family, friends, and the community. [ 48 ] I will also read a portion of a letter written by a family friend. He writes: Most of all, I know without a doubt that A.J.B. is humbled and has great remorse for the life and lives he has impacted by his action.

He desperately wants to look the victim in the eye and ask for forgiveness and assure her that he has learned from this experience. [ 49 ] In sentencing A.J.B., I must apply the Youth Criminal Justice Act . Crown counsel, Mr. Ellsay, submits that the appropriate sentence for A.J.B. is four and a half months' jail followed by an 18-month intensive support and supervision order. In addition, he asks the court to impose a five-year driving prohibition. [ 50 ] Defence counsel, Mr.

Marshall, submits that it would be inappropriate to send A.J.B. to jail and that the appropriate sentence is an intensive support and supervision order or a probation order. He agrees with Crown counsel that a lengthy driving prohibition should be imposed. He submits that the driving prohibition should be in the range of three to five years. [ 51 ] I have considered the applicable provisions of the Youth Criminal Justice Act . They are the

preamble and sections, 3, 38, 39, and 42. [ 52 ] I must also consider all of the mitigating and aggravating circumstances in this case. [ 53 ]

Section 3 of the Act , "declaration of principle," sets out the policy for Canada with respect to young persons.

Section 38 sets out the purposes and principles of sentencing youths. [ 54 ]

Section 3 of the Youth Criminal Justice Act provides, amongst other things, that the youth criminal justice system is intended to protect the public by holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person and by promoting rehabilitation and reintegration of young persons who commit offences. [ 55 ]

Section 3 provides further that the criminal justice system for young persons must be separate from that of adults, be based on the principle of diminished moral blameworthiness or culpability, and emphasize rehabilitation and reintegration and fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. [ 56 ]

Section 3 also provides that within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should reinforce respect for societal values, encourage the repair of harm done to victims and the community, be meaningful for the individual young person given his or her needs and level of development, and respect the needs of aboriginal young persons and of young persons with special requirements. [ 57 ]

Section 38 of the Act reads as follows: 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.

(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) the sentence must: (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and [finally] (

f) may have the following objectives: (

i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

(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. [ 58 ] I note that the principle of general deterrence, which is applicable to adult offenders, does not apply to youths.

I also note that the case law indicates that the general range of the sentence for an adult convicted of the offence for which A.J.B is being sentenced is three to eighteen months jail. [ 59 ] The court must also take into account any aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in the Youth Criminal Justice Act . [ 60 ] I will now turn to the aggravating and mitigating circumstances in this case. [ 61 ] The aggravating circumstances include the following: - the severe injuries suffered by Molly Burton; - the fact that A.J.B.’s failure to stop at the scene of the accident or to promptly report the accident resulted in Molly Burton laying alone and suffering for over four and a half hours before being found; - the fact that contrary to the restrictions on his learner's driver's licence, A.J.B. drove after consuming two beer and without having an adult with a valid driver's licence seated beside him. - the fact that A.J.B. has the driving record which is described earlier and which includes the Motor Vehicle Act offence of failing to stop for police. - the fact that due to his unsatisfactory driving record, A.J.B. had been prohibited from driving for a period of six months by the Superintendent of Motor Vehicles. [ 62 ] I note that that six-month prohibition ended about seven months before the date of the offence we are dealing with today. [ 63 ] The mitigating circumstances in this case include the following: - that A.J.B. is being sentenced for the offence of hit and run, knowing that he injured a pedestrian, and not being sentenced for impaired driving causing bodily harm or dangerous driving causing bodily harm or the like. - that A.J.B. was 16 years of age when he committed the offence. - that he has no criminal record. - that A.J.B. has been hampered by a learning disability and that his cognitive abilities are lower than many other people his age.

This is relevant when considering the moral blameworthiness or culpability of the accused. - that the day after the accident, A.J.B. told the police that he was the driver. - that A.J.B. has fully complied with all of the bail conditions imposed upon him on September 12, 2013. These conditions include not being in the driver's seat of a motor vehicle and a curfew from 9 p.m. to 6 a.m. each day.

According to defence counsel, the police have checked on A.J.B. during curfew hours at least 30 or 40 times and have always found him to be home. - that A.J.B. abided by the six-month driving prohibition imposed upon him in August of 2012. - that since being prohibited from driving for that six-month period, A.J.B. has not committed any further driving violations. [ 64 ] Mr.

Marshall correctly submits that his client has done everything right since he made the wrong decision to drive after consuming alcohol and without an adult present and the wrong decision to leave the accident scene on September 11 of last year. [ 65 ] If A.J.B. was an adult, I would most certainly send him to jail, but he is not. [ 66 ] Crown counsel and defence counsel disagree as to whether a jail sentence is even an option in this case. I note that if it is available, in accordance with s. 38(2) (d) , I must consider all available sanctions other than custody that are reasonable in the circumstances.

I may only impose a jail sentence upon A.J.B. if I determine that there are no other sanctions which are reasonable in this case.

[67] In accordance with s. 38(2)(e), I may only impose a jail sentence if I determine that there is no less restrictive sentence whichwould achieve the purposes of sentencing.

Put another way, even if a jail sentence is an available option for the court, I may onlyimpose a jail sentence upon A.J.B. if I decide that that is the only sanction which will achieve the purposes of sentencing set out in theYouth Criminal Justice Act. [68] As it turns out, I do not have to decide the issue as to whether a jail sentence is possible in this case because I have decided thatthere is a less restrictive sentence which would serve the purposes of sentencing.

In my view, the purposes of sentencing can be achievedthrough a strict and lengthy intensive support and supervision order. [69] Included with the many cases with which I was provided is the decision of, R. v. N.(A.J.) 2004 BCPC 13 , 2004B.C.P.C.13. It is a decision of Judge Raven of the Provincial Court of British Columbia. I note that it is a case where the youth wasfound guilty of four counts of dangerous driving causing the deaths of four young people. They were passengers in the car that wasdriven by the accused who was then 16 years of age.

Apparently, the defendant and the victims were friends. [70] In that case, Judge Raven reviews the applicable provisions of the Youth Criminal Justice Act and, at paragraph 22, she writesthe following, which I believe is applicable in this case: He did not intend the horrific consequences of his offences. I am satisfied that N's rehabilitation and reintegration into society can besafely addressed through a non-custodial disposition. Meaningful consequences for his behaviour can be better addressed outside of acustodial facility than inside of a jail.

In the case of a youth with no prior criminal record, a stable and supportive family, education andwork opportunities and every indication that he will comply with community supervision, it is my conclusion that a non-custodialsentence can be constructed that is consistent with the principles in S. 38 of the [Youth Criminal Justice Act] despite the severity of theoffences in this case. As a result of this finding, I do not consider making a custodial disposition. [71] I believe that those words apply well to the case before me.

In my view, the fact that the accused has complied fully with hisbail conditions, the fact that he has had no further driving infractions since he was prohibited from driving, suggest that he will complywith an order for community supervision. [72] I will now get to the sentence I am imposing. [73] I understand from counsel that the longest sentence that I can impose in this case is one of 24 months. I will impose anintensive support and supervision order.

It will be for 24 months. [74] The conditions are that, A.J.B., you are to keep the peace and be of good behaviour. [75] You are to report to a youth worker no later than 4 p.m. -- you can sit down. It will be a little bit longer. [76] MR. MARSHALL: My mistake, Your Honour. [77] THE COURT: It's okay.

Thanks. [78] Keep the peace and be of good behaviour. [79] Report to a youth probation officer no later than 4 p.m., Monday, September 8, 2014, and thereafter as and when directed. [80] You are to reside where directed by your youth probation officer and not change your place of residence without prior writtenpermission of your youth probation officer. [81] You are to attend an educational institution and/or maintain employment as may be directed by your youth probation officer. [82] You are to attend and participate in an intensive support and supervision program as directed by the youth probation officer. [83] For the first three months of the 24-month intensive support and supervision order, you are to be under house arrest.

You must,for the first three months, remain in your residence 24 hours a day, seven days a week, except when you are in the company of one orboth of our parents or when you have the prior approval in writing of your youth probation officer. [84] For the next nine months of the order, you are to abide by a curfew between the hours of 10 p.m. and 6 a.m.

Again, during thenine-month curfew period, you may only be outside your residence during curfew hours if you are in the presence of one or both of yourparents or you have the approval in writing in advance of your youth probation officer. [85] I note Crown counsel sought a four-and-a-half-month jail sentence which means, if that was imposed, A.J.B. would serve threemonths in actual custody.

I note that house arrest, while not jail, is the next closest thing. [86] A further condition of the order, A.J.B., is you are to attend at Youth Psychiatric Services for counselling as directed by youryouth probation officer. [87] You are not to possess or consume alcohol. [88] You are not to possess or consume drugs as defined by the Controlled Drugs and Substances Act except in accordance with avalid medical prescription. [89] And this, next, is significant.

You must perform 200 hours of community work service which are to be completed to thesatisfaction of your youth probation officer. [90] The community work service hours are to be completed within the first 12 months of the 24-month intensive support and

supervision order. [ 91 ] Through your youth probation officer, you are to provide Molly Burton with a written apology in a form approved of by your youth probation officer. The apology is to be provided to Molly Burton no later than September 30, 2014. [ 92 ] Finally, you are to participate in a victim/offender conference, if deemed suitable and arranged by your youth probation officer.

I note that no such conference will take place unless the victim, Molly Burton, wishes it to proceed. [ 93 ] Once again, in closing, I would just like to say that this has been very difficult, probably the most difficult sentencing decision I have had to make. I know the decision won't make everybody happy. No decision could make everybody happy. [ 94 ] Finally, I would like to thank both Crown counsel, Mr. Ellsay, and defence counsel, Mr. Marshall, for the obvious time and effort that they dedicated to this case and for the able submissions which they made. [ 95 ] MR.

ELLSAY: Was Your Honour going to impose a driving prohibition? [ 96 ] THE COURT: Oh, yes. In my view, a driving prohibition of five years is appropriate. So A.J.B., you are prohibited from driving for a period of five years. [ 97 ] Anything else, Counsel? [ 98 ] MR. ELLSAY: Is the driving prohibition under the Criminal Code ? [ 99 ] THE COURT: Yes, it is under s. 259 of the Criminal Code . [ 100 ] MR. ELLSAY: Yes. Thank you. [ 101 ] THE COURT: Mr. Marshall, anything that you think needs clarifying? [ 102 ] MR.

MARSHALL: Just some consideration with respect to the two curfews, Your Honour, the first three months and the nine months. I was wondering if, when you say "in your residence," there's always some confusion about whether or not that includes the property? [ 103 ] THE COURT: I am happy you raised this. In fact, it was something that I did consider but didn’t address. This is an unusual case where the accused's family property is not just one parcel of property; it is different parcels and many, many acres.

So it seems to me, and I will hear from counsel on this, that it would be appropriate to allow him to be outside but some limited distance from the family residence. I certainly think he should, at the very least, be restricted to the property on which the dwelling is situated and not be permitted to go to other parcels that are owned by the family. Of course, I do not know where the house is situated and do not know what is close by it. (SUBMISSIONS) [ 104 ] THE COURT: It is getting kind of cumbersome. Counsel know the intention of my order. We could stand down so counsel can collaborate. [ 105 ] MR.

MARSHALL: Why don't we do that for 10 minutes and then -- [ 106 ] THE COURT: -- on some wording and then present it to me and I will indicate whether I approve of it. I think that is appropriate -- because we are trying to draft by committee here. [ 107 ] MR. MARSHALL: Why don't we take 10 minutes and do that, and I can ask for some input from his parents. [ 108 ] THE COURT: -- Mr. Ellsay -- [ 109 ] MR. ELLSAY: Yes. [ 110 ] THE COURT: -- you can talk to Mr. Rushton, and Mr. Marshall, you can talk to the family. So we will stand down until counsel are ready. [ 111 ] MR. ELLSAY: Thank you, Your Honour. [ 112 ] MR.

MARSHALL: Okay. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 113 ] THE CLERK: Recalling the matter of Regina versus A.J.B., Your Honour. [ 114 ] THE COURT: How did counsel make out? [ 115 ] MR. MARSHALL: I think we've got it, with the help of A.J.B.’s parents and the help of the probation officer. [ 116 ] THE COURT: Oh, excellent. And does Madam Clerk have the wording that you have come up with? [ 117 ] THE CLERK: I think they might read it in.

[ 118 ] THE COURT: You are going to read it in? [ 119 ] MR. ELLSAY: Yes. [ 120 ] THE COURT: Read it in slowly and loudly so we can hear it. [ 121 ] MR. ELLSAY: Yes, Your Honour. Dealing with the house arrest -- [ 122 ] THE COURT: So we are just dealing with the house arrest and the curfew parts; right? [ 123 ] MR. ELLSAY: Yes. During the first three months of this order, you are to remain within your residence (or within 100 metres of your residence) at all times except as follows: (a) -- [ 124 ] THE COURT: Just a second. Madam Clerk, are you getting this? [ 125 ] THE CLERK: Yes. [ 126 ] THE COURT: Okay. [ 127 ] MR. ELLSAY: (

a) at any time with the written consent of the youth court worker obtained in advanced, such consent is to be given only for compelling family or personal reasons, for the purpose of attending an educational institution, or to attend to obligations under this order. [ 128 ] THE COURT: So that would include the work service? [ 129 ] MR. ELLSAY: Yes, or counselling, assessment. (

b) while you are with one or both of your parents; (

c) while in the company of a person approved of in advance by his youth court worker for the purposes of employment; (

d) in the event of a medical emergency. [ 130 ] THE COURT: I think that's good. [ 131 ] MR. ELLSAY: And then during the -- for the curfew, it's going to be: During the following nine months of this order, you shall obey a curfew by being inside of your residence (or within 100 metres of your residence) between the hours of 10 p.m. and 6 a.m. each day, except as follows: (

a) at any time with the written consent of the youth court worker obtained in advance, such consent to be given only for compelling family or personal reasons; (

b) while with one or both parents; and (

c) in the event of a medical emergency. [ 132 ] And then the final condition is: You shall present yourself at the door to your residence when any peace officer or youth court worker attends there for the purpose of determining your compliance with the curfew/house arrest conditions of this order. [ 133 ] THE COURT: I think the order should say present yourself to the door within five minutes. [ 134 ] MR. ELLSAY: Yes. [ 135 ] THE COURT: Madam Clerk, are you clear on that? [ 136 ] THE CLERK: Yes, Your Honour. Thank you. [ 137 ] THE COURT: Well, thank you, Counsel. [ 138 ] MR.

ELLSAY: Thank you, Your Honour. [ 139 ] MR. MARSHALL: And for clarification, Your Honour, for everybody's sake, it's now 4:52. He's going to attend before noon on Monday to sign this order. My advice to A.J.B. and his family is that he remains on the bail conditions until that order is signed, or is it -- [ 140 ] THE COURT: Okay, he will remain on the bail conditions until the paperwork is signed. [ 141 ] MR. MARSHALL: Thank you. [ 142 ] MR. ELLSAY: Thank you. [ 143 ] THE COURT: Okay. Thank you. [ 144 ] MR. ELLSAY: Thank you, Your Honour. I direct stays of proceedings on Counts 1 and 3. [ 145 ] MR.

MARSHALL: Thank you. (REASONS CONCLUDED)