R. v. B.L.F. Date:, 2012 BCPC 92

Citation: R. v. B.L.F. Date: 20120320 2012 BCPC 0092 File No: 4015-9-B Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Matter - Restriction on Access, s. 118 YCJA REGINA v. B.L.F. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: N. Barber Counsel for the Defendant: R. Bjarnason (as Agent) Place of Hearing: Prince George , B.C.

Date of Judgment: March 20, 2012 [ 1 ] THE COURT: This is the sentencing of the youth, B.L.F. a 15-year-old First Nations female who appears in custody for sentencing after pleading guilty to one count of breaching her Intensive Support and Supervision Order by failing to abide by her curfew of 10:00 p.m. to 7:00 a.m. each day. [ 2 ] When this matter first came on for sentencing on March 13, 2012, B.L.F. was in custody after being arrested for the curfew breach described in youth Information Number 4015-9-B. [ 3 ] During the March 13, 2012 sentencing hearing, I was told about B.L.F. and her past involvement with the youth justice system.

In part, her involvement with the court includes convictions for two thefts, one uttering threats, and one assault on March 11, 2011. She was given a three-month deferred custody order and 18 months probation. I note that she is still on probation and will be for a period of time after today's date. [ 4 ] On September 10, 2011, she successfully completed a six-month treatment program in Chilliwack and, in fact, the reports I read were that she did very well in that program. [ 5 ] On September 27, 2011, she was arrested for being AWOL.

[ 6 ] October 4, 2011, she received 30 days deferred custody for that AWOL. [ 7 ] October 5, 2011, she was arrested for being intoxicated at the group home. [ 8 ] On October 8, 2011, she went AWOL and was gone for approximately one month or until early November 2011. [ 9 ] On November 14, 2011, she was in custody and was adjourned to November 25 when she was again sentenced for being AWOL. [ 10 ] Since being released back into the community in November 2011, there have been continuing breaches. Information B-5 is a December 1, 2011 curfew breach.

Information B-6 is a December 5-6, 2011 curfew breach, where she received time served, the equivalent of 14 days. Information B-7 is a December 19-20 curfew breach. Information B-8 is a January 21-23 curfew breach where she received 30 days, that is, 20 days open custody and 10 days community supervision. She is now before me on Information B-9, which is a March 5th to 7 th , 2012 curfew breach. [ 11 ] On March 13, 2012, B.L.F. was represented by defence counsel, Mr.

Smith, and together with Crown, a joint submission was delivered to the court for a total sentence of 45 days custody, being 30 days open custody and 15 days community supervision. I was then asked to take into consideration the four days of time served to make the sentence 26 days of open custody and 13 days of community supervision. [ 12 ] Given B.L.F.'s previous history and her blatant disregard for court-ordered curfews, this joint submission appears to be entirely appropriate.

However, when I inquired of counsel where B.L.F. would serve her time in custody, I was advised that after today, March 20, 2012, there would no longer be a female youth containment facility here in Prince George due to the closure of the only facility in the north for female youths. Accordingly, if I accepted the joint submission, B.L.F. would be transported to Burnaby to serve her sentence.

I found this result to be unacceptable and adjourned the sentencing so that I could consider what would be a more appropriate sentence. [ 13 ] By way of background, B.L.F. is a just-15-year-old whose family has been involved with the Ministry of Children and Family Development since she was a child. She had been in the care of her grandmother, but eventually became a child in temporary care after a voluntary care agreement did not succeed.

She has been involved with the youth criminal justice system since June 2010. [ 14 ] Her actual criminal history is short, but she continually breaches court orders such as curfews. As she told me on March 13, 2012, she just does not like the group home rules. [ 15 ] Her social history reflects a past that is unfortunately not uncommon for First Nations females in the north [as read in]: She has been subject to extreme and extensive abuse, neglect and exposure to various forms of violence, substance abuse, and other dysfunctional history. (That is from the December 16 th , 2011

Section 19 pre-bail conference report). [ 16 ] All of the foregoing are well-known to B.L.F.'s social workers, group home manager, youth workers, and Prince George youth containment staff. In short, she is exactly the vulnerable young First Nations female who needs structure and consistent rules. [ 17 ] Further, removing her from her community and family supports is exactly the opposite of what should be occurring to her.

Even if the hope of reuniting B.L.F. with her family is fraught with difficulties, that plan is far preferable to taking her out of Prince George for "budgetary reasons". [ 18 ] I must keep in mind that I am dealing with a just-15-year-old female who is breaching her curfew. She is not committing mass murders. [ 19 ] One has to wonder about a provincial youth justice system withdrawing facilities from northern youth, especially given the principles set out in the

Preamble to the Youth Criminal Justice Act . Here, I am quoting from the

preamble: AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons; [ 20 ] Also, in

Part 4, the Sentencing

section of the Youth Criminal Justice Act , s. 38 sets out the purposes of sentencing. In part, they are:

(1) The purpose of sentencing . . . 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 . . . [ 21 ] The Youth Criminal Justice Act has a completely different focus in sentencing as opposed to the provisions of s. 718 of the Criminal Code for adults. The

preamble to the Youth Criminal Justice Act at the beginning sets out: WHEREAS members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood; WHEREAS communities, families, parents and others concerned with the development of young persons should, through multi- disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes. [ 22 ] It is inconceivable to me that those charged with overseeing the care of these young women could possibly believe that it is in their best interests to be sentenced to a term of custody that would see them removed from their northern communities and transported south. [ 23 ] Accordingly, and for the reasons just given, I decline to impose the sentence set out in the joint submissions, as I find that carrying out that sentence would be completely disproportionate to the offences committed. [ 24 ] Further, given the specific provisions of the Youth Criminal Justice Act relating to sentencing and sentencing principles, I find that the Truth in Sentencing Act as it deals with pre-trial custody does not apply to the Youth Criminal Justice Act , and therefore I am free to allocate pre-trial custody in any fashion I deem fit. [ 25 ] You have, by my calculation, served 11 days time served.

I am going to credit you with 26 days pre-trial custody, and I am going to sentence you to one day in jail served by your presence here today. [ 26 ] I decline to impose further probation because I think that is just going to cause more problems. [ 27 ] Any reason she cannot be released today, Mr. Barber? [ 28 ] MR. BARBER: Well, I think we'll need to hear from Mr. Unger maybe briefly. I don't know what is in place for her today. As well, I'll just hand this up to Your Honour so you're aware. I won't dwell on it at all.

And then lastly, Your Honour -- [ 29 ] THE COURT: You have just handed me something that says there has been a further extension to March 26th. [ 30 ] MR. BARBER: Yeah, just so you're aware of that, but I mean it's a bit late now. [ 31 ] THE COURT: Mr. Unger, why can't I let her out today? [ 32 ] MR. UNGER: Your Honour, I don't see any reason why you can't let her out today. There is a placement in the community for her that she is aware of and she's comfortable with.

That -- the only additional information I would add today is what you just read there, Your Honour. [ 33 ] THE COURT: That it has been extended to March 26th. [ 34 ] MR. UNGER: Yes. (REASONS CONCLUDED)