R. v. J.S. Date:, 2016 BCPC 449

Citation: R. v. J.S. Date: 20161117 2016 BCPC 449 File No: 4007-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth Justice Court) REGINA v. J.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. SAUNDERS PUBLICATION BAN - s. 118 and s. 110 YCJA Counsel for the Crown: T. Morgan

Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: November 17, 2016 Date of Judgment: November 17, 2016 [ 1 ] THE COURT: The charge before the court is that J.S., on or about May 30, 2015, in Campbell River, committed manslaughter of C.A., contrary to s. 236 (

b) of the Criminal Code . As I have said, there is a ban on publication due to this matter coming under the Youth Criminal Justice Act . [ 2 ] J.S. pled guilty some time ago, and the matter was set for sentencing October 12th, 2016.

His date of birth is [deleted for publication], so he was 17 years old when the offence occurred, 18 years old at the time of submissions on sentencing, and is 19 years old at the time of sentencing on November 17th, today. [ 3 ] The Crown is seeking, as per the aide memoire, three-year custody and conditional supervision order with an intensive rehabilitative custody and supervision order known as an IRCS. These are two distinct sentences but nonetheless, the IRCS provision is what I am focusing on. This is a sentencing provision under s. 42(2)(

r) of the Youth Criminal Justice Act -- this is the YCJA -- which can apply to a custodial and non-custodial portion of the sentence. [ 4 ] Crown seeks 12 months of that 36-month period to be in custody, whether open or secure, which the court has to determine, with the remaining 24 months under conditional supervision in the community pursuant to s. 42(2)(o), as the court determines whether or not there should be a custodial portion of the sentence, and if so, for how long. [ 5 ] Crown seeks a s. 51(2) order as well for a 10-year prohibition on weapons, as set out in that section, and a DNA order pursuant to s. 487.051(4). [ 6 ] Defence is seeking a non-custodial sentence for the entire 36 months of the intensive rehabilitation custody and supervision order. [ 7 ] The facts of what occurred giving rise to the offence on May 30, 2015, are set out in an agreed statement of facts filed as Exhibit 1.

Of those facts, defence counsel objected to the introduction of paragraphs 8 relating to a note found by Constable Hert on the deceased's computer some hours after his death, in his bedroom at his home, and paragraph 14, which referenced photographs of the deceased after his death. After hearing from counsel and submissions that are in evidence, these paragraphs were admitted. [ 8 ] The facts are as follows: J.S. and C.A. were friends. J.S. had a relationship with R.K. for ten months, which ended two months before May 30th when C.A. died. He and R.K. had a brief, intimate relationship.

After that, she told J.S. about this and he became extremely angry and said he would "punch him out", and she then told C.A. [ 9 ] On the evening of May 30th, J.S. and two friends were consuming alcohol in a beach area, and he became intoxicated and sent a text to C.A. to meet up at a local school. In the text exchange, certain comments were made in which C.A. voiced his concern that he would be "jumped", but J.S. insisted he meet with him, so C.A. went to the venue just before midnight.

Before leaving home, he typed a note, found on his computer the next morning by the police, in which he stated he was meeting J.S. at the school and, due to personal problems, he considered he may be assaulted by him, and if the worst should occur, in his words, he told his family and friends he loved them. [ 10 ] A physical altercation occurred between J.S. and C.A. at the school, and two witnesses noted arms flying in the first encounter, and that C.A. had a bloody nose.

One of the witnesses then described how J.S. grabbed C.A. by the throat with one hand in front and one at the back, and one of the witnesses of the two told him to stop choking him.

J.S. punched C.A. four or five times in the face and head, and C.A. did not resist or fight back, and he fell back against a railing, striking his head, and fell to the ground, where he quickly became unresponsive and unconscious. [ 11 ] J.S. called the police as he walked away, and when asked if he was willing to go back to check on him, he indicated, no, and hung up and left. [ 12 ] The police arrived shortly afterwards and ambulance services as well, but C.A. was unresponsive and was pronounced dead at 1:38 a.m.

The cause of death was traumatic basal subarachnoid hemorrhage (Exhibit 9.) [ 13 ] A psychological assessment of J.S. was prepared, (Exhibit 7), when he was 18 years old in which various observations were made about him; namely, that his responses were brief, general and vague, he had limited insight, and poor to fair judgment. He smoked marihuana from a young age. He was bullied early on but this stopped when he was in grade 11 because he drank alcohol, smoked marihuana, as he said, and lots of people were intimidated by him. [ 14 ] He trained in martial arts at the time.

He describes his girlfriends as a kind of whore or a "ho", and that Campbell River girls are easy. He complained about chronic back pain and used marihuana to reduce the pain. He was previously assessed with a severe oppositional defiant disorder and attention deficit disorder combined type. [ 15 ] He confirmed that some of his suicidal thoughts were because he took a lot of drugs, but no longer does, according to the author of the assessment. He also stated that he did not know about the IRCS order as it was his probation officer's idea to ask for one.

He acknowledged in the report that fighting is still his primary way of resolving conflicts. He is rated as having a moderate to high risk to reoffend for future violence.

[16] The presentence report (Exhibit 8), described conflicts at home and at school early in J.S.'s life and he was expelled, and took upprofessional training, which did not last long. He is currently unemployed and expresses problems with his back.

He participates infootball and kickboxing and mixed martial arts, and has done so for the past roughly six to seven years. [17] There is no confirmation in either the assessment or the presentence report that J.S. has done any counselling as ordered whenhe was on bail. [18] The victims, who are the family of C.A., described how profoundly and deeply his death has affected the family, to the pointwhere his grandmother said, "C.'s death has destroyed the family" and her biggest fear is that J.S. "could come after my family." "Whois the next person?" in her words. [19] The mitigating factors are as follows: (

a) J.S. has no criminal record; (

b) He pled guilty to the offence; (

c) He has been on bail since shortly after the offence and other than one instance of going to the home of a member of C.A.'s familycontrary to his bail order, he has not offended while on bail or breached. [20] The aggravating factors are as follows: (

a) J.S. lured C.A., despite his opposition to coming to the school on that fateful night; (

b) He intended him harm according to the texts which were exchanged between them and which the deceased understood to be alikely or possible outcome; hence the note on his computer voicing his fears; (

c) J.S. had consumed alcohol and was intoxicated; (

d) C.A. did not fight back or defend himself when J.S. had his hand on his throat and was striking him in the head; (

e) The offence was serious and violent; (

f) Harm, at the very least, to C.A. was premeditated by J.S.; (

g) J.S. was 17 years old and not a young teen at the time; (

h) He showed little empathy by failing to go back and check on C.A. at the request of the police and chose to leave the scene instead; (

i) He appears to have little remorse and insight into the offence, according to the report, the assessment; (

j) He is disrespectful towards others as evidenced in the descriptors of his previous girlfriend, R.K., who C.A. had had a briefrelationship with, and which precipitated the confrontation, in which he referred to R.K. as a ho or a whore. [21] A.A., who was C.A.'s guardian, testified about the events of the evening when the police arrived to notify her about his deathand the effect it had on the family.

She described how close the family was and how they had been together earlier that night when hisgrandparents had visited and spent a pleasant evening, as he was leaving to live with his stepfather in Vancouver soon afterwards. Shedescribed the devastation of the family and how deeply they have all been affected by the loss of such a young family member in theprime of his life. [22] Various victim impact statements were filed, Exhibits 2 and 3, and set out the family's emotions. C.L.A. is C.A.'s sister, and shetestified about the impact on her and her family.

Her evidence was poignant, about how she has had to take leave from work for over ayear and has been on antidepressants and under the care of a psychologist to deal with her grief. Those feelings and emotions weremirrored by C.A.'s grandparents and other family members, such as C.A.'s stepfather and his other sister, K.S., whose statements give atrue sense of the loss this family has suffered as a result of the sudden and violent death of this young man.

No sentence would evercompensate for their loss. [23] A book of documents was filed with reference letters in support of J.S., including his mother, his stepfather, girlfriend, andbrother. He also wrote a brief note saying how sorry he is. [24] Counsel in submissions provided case law in support of their respective positions. [25] Crown refers to Halsbury's Laws of Canada, Youth Justice 2015 Reissue, and the decision of the Supreme Court of Canada inR. v. C.D.K., 2005 SCC 78 , [2005] S.C.J.

No. 79, that the Youth Criminal Justice sentencing regime is to be used for mostserious crimes to reduce over-reliance on incarceration for non-violent young persons: see R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, [2006] S.C.J. No. 27; R. v. D.B., 2008 SCC 25 , [2008] S.C.J. No. 25. [26] Crown also relies on R. v. S.N.J.S., 2013 BCCA 379, in support of its submission that J.S. ought to serve 12 months in custody. In that decision, which is very similar on the facts to the case at bar, S.N.J.S., the young offender, was sentenced to nine months' custodyfor manslaughter, followed by an 18-month supervision order.

The young offender was 16 years old, at a party and consuming alcohol,when a fight broke out between the victim, who was apparently the instigator, and S.N.J.S. and she stabbed the victim in an unplannedand unpremeditated attack. She had no previous offences, came from a loving family, was eligible to become a member of the KatzieFirst Nation, and had a low risk to reoffend, and had been on restricted bail for three years before being sentenced. [27] The British Columbia Court of Appeal, balancing the facts as set out in the Youth Criminal Justice Act, in upholding the

sentence, stated that accountability, meaningful consequences, and specific deterrence are to be balanced against the goal ofrehabilitation and reintegration, and that in certain circumstances a custodial disposition is required to hold an offender accountable forhis or her actions. [28] In R. v. J.V.P., 2016 YKYC 34, the aboriginal young offender, who was 15 years at the time, caused blunt force injury to thevictim, and was sentenced to 24 months' intensive rehabilitative custody with 12 months' conditional supervision.

He grew up in adysfunctional and turbulent environment and had a prior record, including convictions for violence. The court held that an IRCSsentence was appropriate due to the youth meeting the criteria required and the sentence imposed was intended to reduce the youth's riskof reoffending. [29] In R. v. B.E.N., [2015] B.C.J. No. 2079, an IRCS sentence was imposed for attempted murder by a youth who had stabbed hissister. The Crown did not press for any custodial portion of the sentence. He complied fully with an intensive support and supervisionprogram. He had no criminal history.

The violent act was inexplicable. He was taking steps towards his own rehabilitation andreintegration into school and society. [30] Other cases provided by the Crown and considered were R. v. D.B., (ON CA), [2006] O.J. No. 1112, R. v.M.C.P., [2013] A.J. No. 1200. [31] Defence submits that an appropriate sentence under the IRCS sentencing option ought to be in the community. Defenceprovided a number of cases which have been reviewed dealing with youth sentencing criteria, including the principles of rehabilitationand protection of the public: see R. v. D.L.C., (NL PC), [2003] N.J.

No. 94; and the key principles of accountability,proportionality, meaningful consequences, rehabilitation, and restraint in the use of incarceration: see R. v. S.L.S., [2016] N.J. No. 292. [32] Counsel refers to the importance of reintegration and rehabilitation and submits that any reoffending risks can be addressed inthe community. She refers to the following cases which can be distinguished from the case at bar. [33] The circumstances set out in R. v.

B.K., 2015 BCSC 2520, were "extremely unusual" as stated by the sentencing judge, as theoffender was 16 years old at the time of the offence and 21 years at the time of sentence. He was considered a low risk to reoffend. [34] The young offender in R. v. B.W.P., 2004 MBCA 110 , [2004] M.J. No. 267, was decided at a time when the principleof specific deterrence was not a sentencing principle in the YCJA, so it is not applicable in this situation.

He was found to be a low risk toreoffend, and had spent 108 days in pretrial detention, where he maintained a high standing in that environment due to his pro-socialactivities. [35] In R. v. T.B., [2014] O.J. No. 2473, the young offender was sentenced to an IRCS order for manslaughter and given credit for407 days' open custody and 608 days' conditional supervision in the community.

He had discharged a firearm while showing it to hisfriends and a bullet struck the victim in the abdomen. [36] A sentencing judge is required to take into account the following provisions of the Youth Criminal Justice Act, namely s. 3 andss. 38-42. [37]

Section 3 of the Youth Criminal Justice Act sets out the principles to consider to promote accountability, rehabilitation andreintegration, and provide community programs and services to address the circumstances of the youth's offending behaviour.

The courtneeds to consider diminished moral blameworthiness due to the youth of the offender and balance these factors against societal valuesand be meaningful to the young offender. [38] Sentencing principles as set out in ss. 38-42 are to hold the youth accountable through the imposition of just sanctions withmeaningful consequences and, amongst other things, denounce unlawful conduct and deter the young person from committing furtheroffences, which is namely specific deterrence recently added to the Youth Criminal Justice Act as a sentencing principle. [39] The court should take account of factors such as the degree of participation, the harm done to victims, and whether it wasintentional or foreseeable, the reparation to the victim, time spent in detention, previous findings of guilt, and any other aggravating andmitigating circumstances. [40] Section 39(1) provides that a youth court shall not commit a young person to custody unless he or she has committed a violentoffence pursuant to s. 39(1)(

a) or, as provided for in s. 39(1)(b), (

c) and (d), in exceptional circumstances where the aggravatingcircumstances are such that an imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out ins. 38. [41] The relevant factors in this case are the following: (

a) Manslaughter to which J.S. pleaded guilty is a violent and serious offence; (

b) His victim was a friend and still a teen himself; (

c) He lured his victim out to meet him late one night and threatened to "punch him out"; (

d) He intended him harm; (

e) He was intoxicated; (

f) His moral blameworthiness was high as he was angered by the fact that his ex-girlfriend was in a relationship with the victim, andneeded revenge; (

g) He called the police, but when asked to check on C.A. he refused and left without providing assistance;

(

h) He was 17 years at the time, 18 when he pleaded guilty, and 19 when he sentenced, so he is not a young teen; (

i) His remorse, as stated in the brief note to the court, was uninsightful; (

j) He is considered to be a moderate to high risk to reoffend, according to the assessment; (

k) He has no prior record, and after six days in a local lock-up, has been on bail since shortly after the offence; (

l) He has made no efforts to rehabilitate himself since the offence, according to the assessment and report; (

m) He has the support of his family; (

n) His attitude towards the girlfriends in his life is disrespectful, but nevertheless caused him to strike out in anger against his friend, who had taken up with an ex-girlfriend, which suggests deep-seated anger and resentment; (

o) He used his fists to inflict the wounds on C.A. and must have known he had the ability to inflict serious wounds due to his training in martial arts; (

p) The victim did not or could not defend himself when he continued to strike him in the head while holding him by the throat; (

q) The assessment prepared for sentencing is not particularly positive as there is a mention that he has no insight and shows a lack of the ability to engage or communicate and provide somewhat contradictory facts when interviewed; (

r) J.S.'s contact with the Youth Mental Health Organization (CYMH) has been sporadic since the offence, and there is no evidence that J.S. has made any meaningful progress with counselling while on bail, or found employment, and has chosen to listen to music and ride his motorbike. [ 42 ] On a consideration of all the factors, all of which have been considered and applied, those most relevant to the sentencing decision for this event on these facts and for this offence are the principles in s. 3 around accountability and rehabilitation, which are extremely important factors, and also denunciation and specific deterrence, the intentional and foreseeable harm done, and the aggravating and mitigating circumstances. [ 43 ] There are two youth sentencing options available under the Youth Criminal Justice Act for the offence of manslaughter.

The custody and conditional supervision order provides for a maximum length of a three-year sentence, and s. 42(2)(

o) of the Youth Criminal Justice Act provides that the court determines the length of time in custody and on conditional supervision without limits on the length of either the custodial or supervisional portion, provided it is within the three-year maximum. [ 44 ] The other sentencing option is the intensive rehabilitative custody and supervision order, the IRCS, which may only be imposed subject to certain criteria set out in s. 42(7)(b), (

c) and (

d) of the Youth Criminal Justice Act . These requirements are that: (

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

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

c) a treatment and intensive supervision plan has been developed, and there are reasonable grounds to believe that the plan might reduce the risk of committing a further serious offence; and (

d) the program is available and the youth consents to participate. [ 45 ] This option provides for a custodial portion as well, and the same conditions apply as set out in s. 42(2)(

o) of the YCJA . [ 46 ] The court has to determine whether custody ought to be open or secure. Open custody allows for access to programs and services and unrestricted movement within a unit and activities to escorted and unescorted outings and is far less restrictive than secure custody. There are two facilities in British Columbia, one in Burnaby and one in Prince George. [ 47 ] The reports prepared confirm a primary diagnosis of a persistent aggressive disorder and somatic symptom disorder for J.S.

He complains of back pain, which is somewhat surprising in light of the fact he was engaged in martial arts for a number of years before the offence, but nonetheless the IRCS funding would enable him to get assistance with pain management, education, and vocational needs.

There is roughly $100,000 available to cover that cost of these services to address reintegration and rehabilitation, and J.S. has consented to the IRCS plan. [ 48 ] Taking into account the circumstances of this offence, the mitigating and aggravating factors, the personal situation of J.S., the victim impact statements and statements tendered on behalf of J.S., the case law and submissions, this is a case which calls for a balance between reintegration and rehabilitation on the one hand, and on the other hand, a consideration of factors such as accountability, meaningful consequences for a serious violent offence which took the life of a young man, the foreseeability of harm and high moral culpability, as it was the offender who lured the victim out to the school ground late at night, the viciousness of the attack, the importance of specific deterrence as it relates to J.S., and his moderate to high risk to reoffend, according to the assessment. [ 49 ] On these circumstances and weighing these factors, the appropriate sentence pursuant to s. 40(2)(

r) of the YCJA is as follows: for a 36-month intensive rehabilitation custody and supervision order, of which 12 months is to be served in open continuous rehabilitative custody and the remaining 24 months under continuous supervision in the community in the terms set out by the court, no less than one month prior to the expiration of the one year custodial sentence. [ 50 ] The following ancillary orders are also made. There will be a DNA order pursuant to s. 487.04(

a) and 487.051(b)(

i) of the Code , and such sample to be provided by J.S. within 30 days.

[ 51 ] Further, pursuant to s. 51(2) of the YCJA , and s. 109 of the Criminal Code , J.S. is banned for ten years from possession of firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition and explosive substances. [ 52 ] All right, please go with the sheriff. [ 53 ] MR. MORGAN: And the DNA order? [ 54 ] THE COURT: I have made the DNA order. Within 30 days. [ 55 ] MR. MORGAN: Thank you. [ 56 ] THE COURT: Thank you, Counsel. [REASONS FOR SENTENCE CONCLUDED]