R. v. B.E.N. Date:, 2015 BCPC 261

Citation: R. v. B.E.N. Date: 20150923 2015 BCPC 0261 File No: 3972 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (YOUTH CRIMINAL JUSTICE ACT) REGINA v. B. E. N. REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: A. Baines Counsel for the Defendant: F. Fatt Place of Hearing: Prince George , B.C. Date of Hearing: June 23, 2015

Date of Judgment: September 23, 2015 INTRODUCTION [ 1 ] The Defendant, B.E.N. is being sentenced today on Information No. 3972 having earlier pleaded guilty to Count 1 on the Information, attempted murder of his sister, B.S.M.N., which occurred on September 20, 2013 near Prince George. [ 2 ] Both the Crown and Defence counsel submit that the Court should sentence B.E.N. to an Intensive Rehabilitative Custody and Supervision Order (IRCS Order) pursuant to section 42(2)(

r) of the Youth Criminal Justice Act ( YCJA ) for up to three years. [ 3 ] The Crown submits that it is open to the Court to impose a period of incarceration followed by a period of community supervision but does not strongly advocate that position. [ 4 ] Defence counsel submits that the Court should not impose any period of incarceration as a portion of the IRCS Order. OFFENCE CIRCUMSTANCES [ 5 ] On the morning of the attack, B.E.N. and B.S.M.N., were home alone getting ready for school.

Suddenly, and without any provocation by B.S.M.N. and without warning, B.E.N. picked up a large chef’s knife from the kitchen counter and began stabbing B.S.M.N. in the back. [ 6 ] B.S.M.N. tried to escape the attack by first running to her bedroom but B.E.N. pursued her and continued the attack. B.S.M.N. tried to fend off the attack and sustained further injuries to her hands and arms.

She was able to escape the bedroom and ran outside to the school bus stop where she flagged down a school bus whose driver rendered initial assistance and called for emergency paramedics. [ 7 ] After B.S.M.N. escaped the house, B.E.N. called 911 and reported that he had tried to kill his sister by stabbing her. R.C.M.P. members arrived shortly after and called out to B.E.N. from outside the residence. He was ordered to leave the home, which he did, and was arrested. Upon arrest B.E.N. was given his Charter rights, police warning and youth caution by being advised he could have a parent present.

B.E.N. declined to have a parent contacted and was transported to the detachment. [ 8 ] R.C.M.P. members searched the house and located the chef’s knife. They also noted extensive blood stains and splatters throughout the house. B.E.N.’S DEALINGS WITH THE R.C.M.P. [ 9 ] When he arrived at the detachment B.E.N. spoke to legal counsel. When again provided with the youth caution he declined to have a parent contacted or to have one present to advise him.

His clothing was seized and his hands were swabbed to collect evidence. [ 10 ] Later in the day B.E.N. was given a further set of warnings and agreed to provide a statement. A

summary of what B.E.N. told the R.C.M.P. and later various psychological and psychiatric experts engaged to prepare reports for the Court included the following admissions:

a) he had been angry for several months at various people but especially his father, D.N.;

b) D.N. would not allow him to visit his mother, T.N., or his half-brother D. L., required him to do chores about the house, would not allow him to have Internet access or allow him to engage in other activities;

c) he gets along better with T.N.;

d) B.S.M.N. annoyed him from time to time;

e) he had planned to stab D.N. for a couple of months;

f) he had watched the movie Halloween, and particularly the stabbing scenes, over and over again in the previous months and got the idea to stab D.N. and B.S.M.N. from that movie;

g) on the morning of the stabbing he was very angry at D.N. but he wasn’t home so he stabbed B.S.M.N; and

h) he found the knife he used on the kitchen counter but if it had not been there he would have obtained one from the knife drawer. [ 11 ] B.E.N. was held in custody at the Prince George Youth Correctional Centre (PGYCC) for 34 days before he was released on bail and into the care of his mother as a responsible person. Defence counsel advised the Court that B.E.N. did not enjoy his prison experience. B.S.M.N.’S INJURIES [ 12 ] B.S.M.N.’s injuries were extremely serious. She required immediate intervention by paramedics and urgent transportation to hospital.

Upon arrival she received immediate emergency room treatment followed by intensive care hospitalization and treatment by several specialists. She remained in hospital for about a week.

[ 13 ] Her injuries included:

a) multiple penetrating and superficial stab wounds to her back, arms, hands, legs and face resulting in permanent scarring;

b) long term mobility damage to her left thumb; and

c) a collapsed lung. [ 14 ] Had medical intervention not been immediate and thorough B.S.M.N. may well have died. [ 15 ] In addition to her physical injuries B.S.M.N. also suffered psychological and emotional trauma which were very serious at first but have diminished over time with the help of counselling. However, she has resisted attempts by D.N. or T.N. to engage in detailed discussions about the attack or her emotional feelings arising from it. There are also some reports that she has also engaged in self-harm activities.

VICTIM IMPACT STATEMENT [ 16 ] The Court was not provided with a Victim Impact Statement from, or on behalf of, B.S.M.N. D.N. also declined to have the IRCS Pre-Sentence Report author interview B.S.M.N. B.E.N.’S PERSONAL CIRCUMSTANCES Family Background [ 17 ] B.E.N. was raised by his parents, T.N. and D.N., from birth until he was seven at which time they separated and he went to reside with D.N.

Prior to his parents’ separation B.E.N. was not personally subjected to any form of verbal or physical abuse but witnessed many incidents of mutual verbal and physical aggression between his parents including at least one occasion when both the R.C.M.P. and social workers from the Ministry of Children and Family Development were involved. As a result of that incident B.E.N. was referred to and attended the Children Who Witness Violence Program. [ 18 ] B.E.N. is of aboriginal heritage through T.N. T.N. and his maternal grandparents were residential school attendees.

B.E.N. has expressed little interest in participating in or learning about his aboriginal culture. [ 19 ] B.E.N. has two siblings; an older half-brother, D.L., who is five years older, and his younger sister B.S.M.N. who is three years younger. Prior to the separation of his parents B.E.N. resided with them and both siblings.

After his parents separated D.L. went to reside with his biological father while B.E.N. and his sister resided with D.N. [ 20 ] The separation of the family and his lack of contact with D.L. greatly affected B.E.N. because he looked up to and was very close to D.L. [ 21 ] Around the time of separation and for several years thereafter T.N. was engaged in a self-destructive lifestyle that included serious substance abuse.

She was absent from B.E.N.’s life for several years. [ 22 ] During the years that B.E.N. resided with D.N. they maintained a generally good relationship although B.E.N. came to resent the duties and responsibilities placed on him with regard to maintaining the home and acting as a caregiver for B.S.M.N. [ 23 ] When T.N. returned to Prince George she regained her sobriety and a gradual reconciliation between her, B.E.N. and B.S.M.N. began and progressed until the relationship was stronger, stable and sustained. [ 24 ] Both T.N. and D.N. described B.E.N. as a good and happy child, easy to parent, of gentle demeanour, likable and pleasant to be around with good humour.

He is described by many members of his family as being a loving and considerate person towards the other members of the family and others he may meet. [ 25 ] Both T.N. and D.N. described the entire family’s reaction to B.E.N.’s attack on B.S.M.N. as being a “total shock”. Since then both T.N. and D.N. have taken many positive steps, in cooperation with the Youth Probation Officer, to ensure that both B.E.N.’s and B.S.M.N’s physical, emotional and mental health needs are being fully met. [ 26 ] Since the attack B.E.N. has moved to reside with T.N. and her spouse while B.S.M.N. resides with D.N.

In order to ensure that B.S.M.N. maintains her relationship with her mother, B.E.N. regularly visits with his paternal grandparents so that T.N. and B.S.M.N. can spend time together without B.E.N. violating the no contact terms of his bail order. Education [ 27 ] B.E.N.’s educational progress was positive and uneventful during his elementary school years. That progress diminished considerably in his middle school years and he began to have difficulties with his studies and exhibited disciplinary challenges.

He was suspended from school on several occasions for fighting and was both the victim of and the instigator of bullying. [ 28 ] After the attack on B.S.M.N., B.E.N. transferred to a different high school. His progress at that school has improved and there have been no major discipline issues. [ 29 ] B.E.N.’s future plans are to complete high school and enroll at the local college where he hopes to train as an electrician. Employment [ 30 ] B.E.N. has had some limited employment both in the community and working for family. He’s described as a hard worker. At

present he holds no employment and depends on T.N. for his housing and clothing. Both T.N. and D.N. provide additional money or items to B.E.N. from time to time. Leisure Activities [ 31 ] B.E.N. has played organized soccer from a very young age until recently. He is not involved in any other organized sports. B.E.N. also likes to work out and regularly attends the gym with his uncle.

He is a talented drummer and has become involved in a band with high school friends who he describes as good students that don’t party. [ 32 ] B.E.N. also enjoys playing video games and spending unorganized leisure time with his friends. Physical Health [ 33 ] B.E.N. is generally in good health at this time although he had several medical issues in his younger years. He does not use either alcohol or illegal drugs. Mental Health [ 34 ] Since the attack on B.S.M.N., B.E.N. has been engaged in counselling with Youth Forensic Psychiatric Services (YFPS) addressing a variety of topics.

His attendance has been consistent and he has been actively engaged in the process. [ 35 ] B.E.N. has reported to the various report authors a high level of anxiety and being “stressed out” about the following topics:

a) the various interviews he has had to participate in with persons tasked with preparing reports for the Court;

b) recalling the events of the attack and the effect it has had on B.S.M.N;

c) what his school peers know or assume about his present legal predicament; and

d) the possible outcomes of the Court process including the possibility of being incarcerated for a further period of time. Youth Justice Involvement [ 36 ] Since his release from custody B.E.N.’s performance under community supervision has been described as excellent. He is attending all required meetings with the Youth Probation Officer and all collateral reports indicate that he is compliant with all of his bail conditions. [ 37 ] B.E.N. is also involved with an Intensive Support and Supervision Program worker who indicates that his attendance and participation is excellent.

Offence Attitude [ 38 ] B.E.N. describes his recollection of the attack as being somewhat vague and that immediately afterward he was in shock. However, he also reported that he got the idea to kill D.N. and B.S.M.N. from the movie Halloween. He watched the killing sequence in that movie over and over again. In the movie the family was killed with a knife and a baseball bat. [ 39 ] The night before the attack D.N. refused to allow B.E.N. to visit his half-brother D.L. because he was not done with his household chores, and he and D.N. got into a verbal argument about that topic.

He began to think about acting on his anger that night and the anger continued the next morning until he attacked B.S.M.N. [ 40 ] B.E.N. has described that his immediate worry was that B.S.M.N. might die and he was relieved when she did not. He reported to the various interviewers that he is worried that he may have ruined her life and would like to eventually apologize to her in person. He expressed a great deal of love for B.S.M.N. and that he misses her and that saddens him. Present Family Dynamics [ 41 ] The present bail order prohibits B.E.N. from having any contact with B.S.M.N.

Both T.N. and D.N. would like to see that situation change in the near future. [ 42 ] Both T.N. and D.N. have taken steps to have as little discussion as possible about the attack with either B.E.N. or B.S.M.N.

B.S.M.N. has described her recollection of the attack with both parents. [ 43 ] Both T.N. and D.N. have adopted the strategy of putting the events surrounding B.E.N.’s attack behind them in hopes that B.E.N. and B.S.M.N. can begin to rebuild their relationship as soon as possible [ 44 ] The authors of the various reports disagree with that strategy and recommend to the Court that any reconciliation between B.E.N. and B.S.M.N. only occur in circumstances where the people supervising the IRCS Order and B.S.M.N.’s counsellor both agree that such contact would be appropriate and then the reconciliation be structured in a fashion to ensure B.S.M.N.’s well-being.

THE REPORTS [ 45 ] The Court was provided with the following reports concerning B.E.N.:

a) the Intensive Rehabilitative Custody and Supervision Pre-Sentence Report dated May 13, 2015 prepared by Youth Probation Officer M. Unger;

b) the Psychosocial Assessment dated February 6, 2015 prepared by Dayna Long, M.Ed., Regional Manager, YFPS: and

c) the Psychological Assessment dated March 25, 2015 prepared by Noa Schwartz, PhD., Registered Psychologist, with YFPS which included the results of a February 20, 2015 Psychiatric Consultation prepared by Dr. David Morgan, Psychiatrist with YFPS. [ 46 ] All of these reports and assessments were detailed and thorough with regard to B.E.N.’s family background, education history, developmental history, drug and alcohol usage, medical and mental health and leisure pursuits. That information is summarily described elsewhere in these reasons. [ 47 ] The assessments also reported on the various psychological tests performed on B.E.N. and the clinical

interpretation of those tests including:

a) Weschler Adult Intelligence Scale-IV Canada (WAIS-IV Cdn.);

b) Conners Continuous Performance Test 3 rd Edition (Conners CPT3);

c) Weschler Individual Achievement Test-III (WAIT-III);

d) Million Adolescent Clinical Inventory (MACI); and

e) State-Trait Anger Expression Inventory (STAXI-2). [ 48 ] However, despite the numerous meetings B.E.N. had with various experts, the tests he performed, the analysis of those tests and the best clinical expertise and experience of everyone who wrote reports for the Court, none of the reports or assessments presented any plausible explanation as to why B.E.N. committed the terrifying attack upon B.S.M.N. [ 49 ] The authors of the Intensive Rehabilitative Custody and Supervision Pre-Sentence Report and the Psychological Assessment proposed numerous recommendations for the Court to consider in controlling B.E.N.’s behaviour in the community and to assist B.E.N. in addressing the issues that precipitated his attack on B.S.M.N. including:

a) living in a residence approved of by the Youth Worker and obeying the rules and regulations of that residence;

b) abiding by a curfew;

c) abstaining from the possession or consumption of alcohol or illegal drugs;

d) a prohibition with regard to possessions of any weapons and particularly knives;

e) a requirement to continue to attend school or seek and maintain employment;

f) successful completion of an Intensive Support and Supervision Program;

g) successful completion of assessments, counselling, or programs as directed by the Youth Worker in anger management, substance abuse, psychiatric and psychological health, and violence prevention;

h) limitation on access to violence in a variety of available media;

i) opportunities to participate in peer interactive activities such as sports, the arts and recreation;

j) counselling for B.E.N.’s family members including the possibility of family counselling with his parents and perhaps, eventually, with B.S.M.N.;

k) a formal neuropsychological assessment and multidisciplinary functional assessment; and

l) regular follow-ups to evaluate and monitor B.E.N.’s progress and compliance with the various assessments, counselling and programs he is directed to. THE LAW The Youth Criminal Justice Act [ 50 ] The following provisions of the YCJA must be considered in arriving at a just and fit sentence for B.E.N. in this case:

a) 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 of responsibility 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, . . . b) 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 sentence 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; 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.

(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 andprinciples set out in this section. c) 39(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentence) unless (

a) the young person has committed a violent offence; (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offenceare such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38.

(2) If any paragraphs (1) (

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youthsentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in thecircumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with thepurpose and principles set out in

section 38.

(6) Before imposing a custodial sentence under

section 42 (youth sentences), a youth justice court shall consider a pre-sentence reportand any sentencing proposal made by the young person or his or her counsel.

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it hasdetermined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, thereasons why the case is an exceptional case under paragraph (1)(d). d) 42(1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under

section 41,any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of theyoung person, and any other relevant information before the court.

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject tothis section, impose any one of the following sanctions or any number of them that are not inconsistent with each other (

r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person (

i) that is for a specified period that must not exceed (

a) two years from the date of committal, or (

b) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act ofParliament is imprisonment for life, three years from the date of committal. and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of thesentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in thecommunity in accordance with

section 105.

(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(

r) in respect of ayoung person only if (

a) either (

i) the young person has been found guilty of a serious violent offence (

b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance; (

c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds tobelieve that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence; and (

d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that theyoung person’s participation in the program is appropriate. Case Law [51] The Crown and Defence agreed that there were very few cases reported that could provide assistance to the Court indetermining a just and appropriate sentence in this case. The Crown did provide the following cases:

a) R. v. X. 2014 NSPC 95

b) R. v. J.C. 2013 ONCJ 257

c) R. v. L.P. 2012 BCPC 6 , 2012 BCPC 0006

d) R. v. C.J.M. 2010 SKQB 103

e) R. v. A.J.D. 2009 NSSC 56 [ 52 ] Defence counsel submitted that the Court should take particular guidance from L.P. SUBMISSIONS Crown [ 53 ] Crown counsel acknowledged that it was not seeking an adult sentence in this case. She further acknowledge that an IRCS Order could include a period of custody but that such a term may not be necessary in the circumstances. [ 54 ] The Crown submitted that the following are aggravating factors:

a) the degree of planning involved;

b) that B.E.N. was an older sibling and, as such, abused the position of trust in relation to B.S.M.N.;

c) the attack amounted to a serious violent offence; and

d) B.S.M.N. suffered very serious physical injuries and has ongoing psychological issues. [ 55 ] The Crown further submitted that the following are mitigating factors:

a) B.E.N. called 911 immediately after the attack to report what he had done;

b) he expressed remorse both immediately after the attack and since then; and

c) he has performed very well on bail and has obtained assistance from various social resources and his family. Defence [ 56 ] Defence counsel’s submissions can be summarized as follows:

a) B.E.N. has been remorseful since immediately after the attack;

b) his progress while on bail has been excellent;

c) incarcerating B.E.N. conflicts with the law in this type of case;

d) the report prepared for the Court suggests that the focus should be on B.E.N.’s rehabilitation and that is better accomplished in a community setting; and

e) reconciliation between B.E.N. and B.S.M.N. should occur because they both seem to want to do so but it should be done in circumstances directed by and approved of by the IRCS team. DISCUSSION Sentencing Options [ 57 ] Given the nature of the offence B.E.N. has pleaded guilty to, there are a number of options available to the Court with regard to sentencing him under the YCJA . [ 58 ] The first would be a Custody and Conditional Supervision Order pursuant to section 42 (2)(

o) which can be for a maximum of three years. Unlike the more familiar Custody and Supervision Order under section 42 (2)(

n) with the time in custody and under community supervision is fixed at a 2:1 ratio, an order under section 42 (2)(

o) must specifically set out the time a youth must serve in custody and the time permitted to be under community supervision. [ 59 ] There are various ancillary provisions of the YCJA that provide for Court review of custodial sentences in a variety of circumstances. The Court may also designate where any term of custody will be served in either an open or secure setting in either of the two youth facilities in the province located in Prince George or Burnaby. [ 60 ] The other option is an Intensive Rehabilitative Custody and Supervision (IRCS) Order pursuant to section 42 (2)(

r) which can be for a maximum of three years but can only be imposed if the youth meets certain specific criteria set out in that section. The amount of time a youth must spend in custody, and at what level of security, and under community supervision is not predetermined like it is in section 42 (2)(n).

[ 61 ] In addition, the benefit of an IRCS order is that additional funding up to $100,000.00 is available from the federal government for rehabilitative programs and services for the youth. [ 62 ] In order for an IRCS order to be made B.E.N. must meet, and has met, certain criteria as set out in section 42 (7) of the YCJA :

a) he has been found guilty of a serious violent offence;

b) he does suffer from a mental illness or disorder, a psychological disorder or emotional disturbance. His behaviour, in the opinion of Dr. Morgan, is consistent with a DSM V diagnosis of Unspecified Trauma and Stressor Related Disorder;

c) a plan of treatment and intensive supervision has been developed and the various report authors conclude that there are reasonable grounds to believe that the plan might reduce the risk of B.E.N. repeating the offence or committing another serious violent offence; and

d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that B.E.N.’s participation is appropriate. [ 63 ] In addition, B.E.N. has indicated that he is prepared to participate in and abide by the terms of an IRCS Order. General Sentencing Conditions [ 64 ] The YCJA stresses two major concepts must be addressed in this case.

The first is the long-term protection of the public and the second is imposing meaningful consequences on the young person. [ 65 ] Long-term protection of the public is best accomplished by addressing the underlying circumstances of the offending behaviour, by rehabilitating and reintegrating B.E.N. into the community and by holding B.E.N. accountable for his actions by imposing meaningful consequences for the harm he has done.

It is clear from the circumstances that B.E.N.’s actions have caused considerable harm to B.S.M.N. and to their entire family. [ 66 ] In addressing meaningful consequences Defence counsel has submitted that B.E.N.’s rehabilitation is best accomplished in the community and should not be interrupted by a period of incarceration. The Court has not heard B.S.M.N.’s views as to what she thinks might be meaningful consequences as the victim of this violent offence. Specific Sentencing Considerations [ 67 ] In arriving at a just and appropriate sentence for B.E.N. I have considered the following factors:

a) his guilty plea which is consistent with his admission of responsibility immediately after the attack;

b) a lack of any previous criminal history and his full compliance with the bail terms;

c) his relatively young age at the time of the offence;

d) the 34 days he has already spent in custody prior to obtaining bail;

e) the time span of almost two years between the offence and the sentencing date;

f) the assistance provided by the Intensive Rehabilitative Custody and Supervision Pre-Sentence Report, the Psychosocial Assessment, the Psychological Assessment and the recommendations suggested by the authors of those reports;

g) the absence of any indication from B.S.M.N. or her family that they seek a term of imprisonment;

h) the provisions of the YCJA and the case law provided by counsel;

i) the submissions of counsel. Just and Appropriate Sentence [ 68 ] It may be difficult for members of the general public to understand how a person, no matter their age, who came within moments of killing another person, could even be considered to receive punishment that does not include a term of imprisonment. [ 69 ] It is certainly a reasonable question to ask in these circumstances. A period of time in a youth custody facility would be an entirely defendable outcome at law.

Such a decision would not unduly interfere with B.E.N.’s rehabilitation because the services available under the terms of an IRCS Order are available in a youth custody facility. [ 70 ] Without the benefit of a Victim Impact Statement from B.S.M.N., the Court has no method to gauge her views on how this attack has affected her and what sentence would give her the necessary comfort and confidence about her future safety. [ 71 ] In addition, although D.N. was not the victim in this matter, he was the intended victim. The Court has no knowledge about his

views on how his future safety can be addressed during his future contact with B.E.N. [ 72 ] Additionally, there are the circumstances of the attack itself. It was not a spontaneous ill-informed reaction to a set of circumstances. B.E.N. formulated a plan, enhanced by his repetitive watching of a certain movie, to act on his anger towards his family members. He acted on that plan with a persistent level of violence that only ceased when B.S.M.N. escaped. [ 73 ] No one has been able to provide the Court with an explanation as to why B.E.N. acted as he did.

He has been unable to explain the reasons for his actions to his parents, the Youth Probation Officer, or the psychological experts. [ 74 ] The various people who have interacted with, examined, or assessed B.E.N. since the attack have been unable to shed any light on what might have been the genesis or catalyst of his criminal behaviour and whether or not there is a quantifiable measurement of the risk he presents to act that way again in the future. [ 75 ] Is he just a confused and troubled youth who acted on a fantasy induced by watching and re-watching a movie or is he a yet to be diagnosed sociopath who will act violently again if the opportunity presents its self.

Only time will answer that troubling question. [ 76 ] B.E.N. has accepted responsibility for and expressed remorse for his actions. He has participated freely and fully with the resources provided to him since his arrest. He has cooperated fully in the preparation of the reports and assessments prepared to assist the Court.

He is already taking steps towards his rehabilitation. [ 77 ] In light of what has been set out above whether a term of incarceration is warranted and required and, if it is, how long such incarceration should be is a very difficult decision in this case. [ 78 ] However, at the end of the analysis and based on the philosophical underpinnings of and the directions set out in the YCJA, I have concluded it is not necessary or appropriate to require B.E.N. to serve any period in custody as a part of the IRCS Order he will be serving. [ 79 ] If there are any breaches of the IRCS Order requiring B.E.N. to be brought back before the Court I would urge the Crown to bring the matter back before me because I have the requisite knowledge of and background information about B.E.N.’s circumstances to effectively and appropriately deal with the matter.

Furthermore, if there is to be any application to vary the terms of the IRCS Order brought by B.E.N. or the Youth Probation Officer it would be appropriate for those to be dealt with in a similar manner. DECISION Ancillary Orders [ 80 ] A firearms prohibition is mandatory given the nature of the offence. It is imposed under s. 51(2) of the Youth Criminal Justice Act . B.E.N.

I prohibit you from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for 10 years. [ 81 ] In addition a DNA order is required because attempted murder is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the national DNA databank from B.E.N. by October 31, 2015. [ 82 ] Pursuant to s. 487.051(4) of the Criminal Code I make a further order in Form 5.041 that you shall attend on or before October 31, 2015 between the hours of 9:00 am and 4:00 pm at the RCMP Detachment at 455 Victoria Street, Prince George, B.C. and submit to the taking of the samples. [ 83 ] There will be an order pursuant to s. 119 of the YCJA that the Intensive Rehabilitative and Supervision Pre-Sentence Report, dated May 13, 2015, the Psychosocial Assessment dated February 6, 2015, and the Psychological Assessment dated March 25, 2015 be provided to the Provincial Director, Community Youth Probation, the IRCS team and to any resource provider working under the direction of the IRCS team who provides assessments, counselling programs, or residential full time attendance programs to B.E.N. as part of his sentence.

Sentence [ 84 ] B.E.N., you will be required to serve an Intensive Rehabilitative Custody and Supervision Order for a period of three years pursuant to section 42 (2)(

r) of the Youth Criminal Justice Act. That order will have the following terms and conditions:

a) You shall keep the peace and be of good behaviour.

b) You shall appear before the court when required to do so by the court.

c) You shall report to the provincial director immediately upon release, and then be under the supervision of the provincial director or a person designated by the court.

d) You shall inform the provincial director immediately on being arrested or questioned by the police.

e) You shall report to the police, or any named individual, as instructed by the provincial director.

f) You shall advise the provincial director of your address of residence and you shall report immediately to the clerk of the court or the provincial director of any change: (

i) in your address,

(ii) in your normal occupation, including employment, vocational or educational training and volunteer work, (iii) in your family or financial situation, and (iv) that may reasonably be expected to affect your ability to comply with the conditions of this order.

g) You shall not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by this order.

h) You shall comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society.

i) You shall report in person to the Youth Worker no later than 4 PM September 23, 2015, at the Youth Probation Office located at 1040 Third Avenue, Prince George, B.C., and after that you shall report as and when directed by the Youth Worker.

j) You shall reside at a residence approved by the Youth Worker and you shall not change your residence at any time without first obtaining the written consent of the Youth Worker.

k) You shall obey all the rules and regulations of your residence.

l) You shall remain in the Province of British Columbia unless you have first obtained written consent from the Youth Worker to go elsewhere.

m) You shall obey a curfew by being inside your residence (or on the lot on which your residence is located) between the hours of 9 PM and 7 AM each day except as follows:

i) 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; ii) when traveling directly to, or returning directly from your place of employment or while in the course of your employment. You shall provide the Youth Worker with written proof of your employment; iii when traveling to, or returning directly from an educational institution at which you are enrolled, or while in the course of classes or extracurricular activities approved by the Youth Worker as such educational institution.

You shall provide the Youth Worker with written proof of your educational enrolment, your attendance at classes and involvement in extracurricular activities; iv) in the event of a medical emergency and then only when traveling directly to, or returning directly from, a hospital emergency ward;

v) in the company of and under the direct supervision of T.N. or D.N.

n) You shall present yourself at the door to your residence to any Peace Officer or Youth Worker who attends there for the purpose of determining your compliance with the curfew conditions of this order.

o) You shall 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.

p) You shall have no contact or communication, directly or indirectly, with B.S.M.N. except as follows:

a) with the advance written consent of the Youth Worker and then only after there has been consultation with the IRCS Team and with the agreement of T.N., D.N. and B.S.M.N.’s counsellor and then only in such circumstances and at such locations as approved by the Youth Worker.

q) You shall immediately leave the presence of B.S.M.N. (on any occasion after contact with her has been permitted by the Youth Worker) at her request or upon the request of a Peace Officer or the Youth Worker and after that you shall have no contact or communication with that person or returned to that person’s presence without first obtaining the consent of the Youth Worker.

r) You shall immediately leave the presence of D.N. at his request or upon the request of a Peace Officer or the Youth Worker and after that you shall have no contact or communication with that person or return to that person’s presence without first obtaining the consent of the Youth Worker.

s) You shall not attend at, or be within 50 meters of, any place which you know to be the residence, school or workplace of B.S.M.N. without the written consent of the Youth Worker, and then only at such times and in such circumstances as permitted by the Youth Worker.

t) You shall not possess or consume any alcohol or any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician.

u) You shall not possess any weapon as defined in

Section 2 of the Criminal Code .

v) You shall not possess any knives outside of your residence except for the immediate preparation or eating of food or for purposes directly and immediately related to your employment.

w) You shall not watch, view or observe any television shows, movies or any form of electronic media images that have not been approved of in advance by the Youth Worker.

x) You shall: (

i) attend an educational institution regularly and not be absent except in accordance with a medical certificate or the advance written consent of the Youth Worker; or (ii) make reasonable efforts to seek and maintain employment approved by the Youth Worker. If on any occasion that you report to the Youth Worker you are not actually employed you shall provide the Youth Worker with a report describing the efforts you made to find employment since your last report. Such report may be verbal or written in the discretion of the Youth Worker.

y) You shall attend, participate in and successfully complete any assessment, counselling, or program as directed by the Youth Worker. Without limiting the general nature of this condition, such assessment, counselling or program may include and relate to:

i) anger management; ii) psychiatric and psychological health; iii) violence prevention; iv) neuropsychological assessment;

v) multidisciplinary functional assessment; vi) such full-time attendance program as may be directed by the Youth Worker; and you shall comply with all the rules and regulations of any such assessment, counselling or program.

z) Subject to the wishes of B.S.M.N. and the agreement of the Youth Worker, the IRCS Team and B.S.M.N.’s counsellor, you shall participate in a victim/offender reconciliation program under the supervision and direction of the Youth Worker. aa) You shall attend, participate in, obey all the rules and regulations, and successfully complete an Intensive Support and Supervision Program, to the satisfaction of the Youth Worker. bb) B.E.N., or the Youth Worker, or the Crown are at liberty to apply for a review of the terms of this Order at any time after September 30, 2016. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of British Columbia