R. v. C.G., 2023 BCPC 226

Citation: R. v. C.G. 2023 BCPC 226 Date: 20231003 File No: 4278-1 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REX v. C.G. BAN ON PUBLICATION – s. 110 and 111(1) of the YCJA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.H. SILVERMAN Counsel for the Crown: J. Vivian Counsel for the Accused: T. Martin Place of Hearing: [omitted for publication], B.C. Date of Hearing: July 6, 2023 Date of Sentence: October 3, 2023 [ 1 ] C.G. was convicted at trial of manslaughter. He is now before me for sentencing. Although he is now an adult, the offence

[ 1 ] C.G. was convicted at trial of manslaughter. He is now before me for sentencing. Although he is now an adult, the offence occurred when he was 17 years old. Accordingly, the provisions of Youth Criminal Justice Act (or YCJA ) apply. My task then, is to impose a fit sentence, bearing in mind the applicable provisions of that Act . [ 2 ] In this instance, the Crown and Defence jointly submit that a three year Intensive Rehabilitative Custody Supervision (or IRCS) sentence be imposed. This is the maximum length of sentence that is permitted in the YCJA .

Counsel differ, however, on what portion of that time they say Mr. C.G. should spend in custody, and then the period that he would be subject to community supervision. [ 3 ] Crown counsel submits that the court consider a range of custody of 8 to 12 months, less 165 days Mr. C.G. spent awaiting his release on bail. The balance of the three year IRCS order Crown says would then be subject to non-custodial supervision. [ 4 ] Defence counsel submits that Mr.

C.G. receive the 165 days credit plus one more day of custody, and that he then be subject to the three year sentence while being supervised in the community. [ 5 ] Counsel agree on the terms for the period of non-custodial supervision, as well as ancillary orders for a firearms prohibition, DNA order and forfeiture of the offence related property. CIRCUMSTANCES OF THE OFFENCE [ 6 ] Detailed circumstances of the offence can be found in my Reasons for Judgment. In

summary, on the evening of February 28, 2021, C.G. invited K.C. and two other young people to his bachelor suite where they drank and smoked marihuana. At some point Mr. K.C. became upset with Mr. C.G. over how he treated one of the guests. They argued and though Mr. K.C. threatened to beat up Mr. C.G., the altercation remained only verbal. [ 7 ] Mr. K.C. was in the process of leaving, but still wanted to talk to Mr. C.G. about his concerns. Mr. C.G. felt anxious and scared. He then walked into the kitchen area of the suite with Mr. K.C. a short distance behind him. At that point Mr.

C.G. opened a drawer and pulled out an 18 cm kitchen knife, turned and walked several steps toward Mr. K.C. and stabbed him once in the upper chest. [ 8 ] The blow was forceful with half the knife’s blade entering Mr. K.C.’s chest. The wound penetrated Mr. K.C.’s pericardial sac, his front diaphragm, liver and almost completely transected his abdominal aorta. Blood loss was rapid, resulting in Mr. K.C. collapsing on the deck outside the suite. [ 9 ] Mr. C.G. called 911 and did try to stop Mr. K.C.’s bleeding. When first responders arrived Mr. C.G. was cooperative although quite distraught. Mr.

K.C. was pronounced dead a short time later. Mr. C.G. was arrested but released without charge. [ 10 ] Charges in this matter were sworn about a year later, shortly after Mr. C.G. came into custody on a number of new matters. He secured his release on June 16, 2022 after spending 111 days in custody. He has remained out of custody since that date. CIRCUMSTANCES OF THE OFFENDER [ 11 ] For this sentencing hearing I have had the benefit of a pre-sentence report, with a significant Gladue component, a psychological report and a psycho-social report. I also have a number of letters of support that counsel filed on Mr.

C.G.’s behalf. In addition, Mr. C.G.’s Youth Court Worker was present at the sentencing hearing and provided helpful answers to a number of questions that I raised. Also present was his psychologist, with whom he meets regularly; as well as members of Mr. C.G.’s family. [ 12 ] As mentioned earlier, Mr. C.G. was 17 at the time of this offence. Although he had previously been involved in another matter that eventually resulted in criminal charges, at the time of the index offence he had never been charged nor convicted of any other offences.

That has since changed, and will be discussed in more detail below. [ 13 ] Mr. C.G. had a difficult early childhood while living with his mother in what has been described as unsafe environments. He has had little contact with his father. By age 12 he was removed from his mother’s home and placed in Ministry care where he remained until aging out in 2022. In total, he experienced 12 different foster care placements. Currently, Mr. C.G. lives with his sisters. Both they and Mr. C.G.’s mother are very close and extremely supportive. [ 14 ] Mr. C.G. struggled early on in school.

From grades 2 through 4, he presented with significant behavioural challenges, with incidents ranging from outright task refusal to acting out aggressively. He eventually left school in grade 8, but began taking courses toward his high school diploma while at Burnaby Youth Detention and then later while out of custody and subject to Youth Court supervision. He has a small number of requirements to fulfill in order to get his diploma, but appears to have prioritized work instead. [ 15 ] Mr. C.G. worked briefly for his step-grandfather in 2021. While subject to the terms of a full time attendance program, Mr.

C.G. later secured employment with an irrigation company. The owner of the company who has written on Mr. C.G.’s behalf, describes him as a highly valued and well-liked employee. He believes that Mr. C.G. has a good future with the company, and to that end Mr. C.G. has some educational plans to obtain certification as an irrigation technician. [ 16 ] Mr. C.G. began using alcohol and drugs while in grade 8. He recognizes that alcohol has been a contributing factor to his criminal offending. To his credit, since going into custody at the end of February 2022, he has not consumed alcohol.

When he was released from custody in June 2022 he attended [omitted for publication], and completed a four month treatment program. Currently, to assist in maintaining sobriety he sees a psychologist on a weekly basis. [ 17 ] The psychological report prepared for this hearing also identifies alcohol as being a major contributing factor in Mr. C.G.’s offending, noting that it “releases [C.G.]’s emotional inhibitions, renders him more suspicious and increases the likelihood of impulsive aggressive responding”. On the other hand, the report author notes Mr.

C.G.’s now 14 months of sobriety, as well as other factors such as a pro-social peer group and Mr. C.G.’s remorse regarding the offence, and rates his risk level now as moderate. He therefore stresses the need for further substance abuse counselling, either residential or community based, and ideally with an Indigenous component.

[ 18 ] Mr. C.G. identifies as Métis . His mother has status with the [omitted for publication] close to [omitted for publication]. It is also believed that Mr. C.G.’s father has Indigenous ancestry. The report notes that Mr. C.G.’s father and his sister were forcibly adopted out of their biological family. Later Mr. C.G.’s paternal aunt was murdered and noted as one of the victims identified at the MMIW Inquiry. Mr. C.G.’s mother’s family were not forced to attend residential school.

However, it is clear that they did suffer the effects of colonialism including the loss of status, which was the result of inter-marriage, and the loss of first language. [ 19 ] Mr. C.G. has more recently sought assistance and learning about and connecting with his Indigenous heritage. CRIMINAL RECORD [ 20 ] As mentioned earlier, Mr. C.G. did not have a criminal record at the time of the index offence. He had, however, been involved in an incident on October 24, 2020 that is remarkably similar in its circumstances to the index offence.

On that date, he was intoxicated and socializing at his suite with friends when he got into an altercation with one of them. He went into the kitchen and retrieved a paring knife and tried to stab this person with it. He did not succeed because the victim dodged the attack after being warned, but was left with a small cut to his arm. Charges in the matter were not sworn until April 8, 2021. [ 21 ] Mr.

C.G. was later charged as an adult with uttering a threat to his girlfriend on October 30, 2021, and then a breach of the undertaking by contacting her via email on January 10, 2022. [ 22 ] On February 26, 2022 he was arrested following allegations of assault and being unlawfully in a dwelling house. He was in custody on that matter when the index offence was sworn on February 28, 2022. [ 23 ] Crown counsel related the circumstances of these other offences, and they too bear some similarities to the matter before me. Except for the breach charge, all appear to have occurred when Mr.

C.G. was intoxicated; and all involve either threats of death, or acts of violence. [ 24 ] When Mr. C.G. was arrested on February 26, 2022 he was initially remanded in custody to VIRCC, an adult pre-trial centre. At the time he would have just turned 18. He remained there until March 15, 2022 when he was released on his adult charges. However, Crown counsel sought his detention on the index offence, and as a result he was transferred to the Youth Detention Centre in Burnaby. [ 25 ] On June 3, 2022, Mr. C.G. pled guilty and was sentenced on the October Youth Court matter.

He received a two year conditional discharge. The terms of that order involved a full time attendance program. On June 15, 2022 Mr. C.G. was granted bail for the index offence and released the following day. By that time, Mr. C.G. had spent 111 days in pre-trial. [ 26 ] On November 4, 2022, following guilty pleas, Mr. C.G. was given suspended sentences and two years probation on each of his adult charges. [ 27 ] Since his release on the index offence, Mr. C.G. has complied with the provisions of that release order.

He has complied with the terms of Youth Court discharge, which included attendance at [omitted for publication]. He has also been compliant with the terms of his adult court probation orders. He has not acquired any more criminal charges; and most importantly, he has maintained sobriety. VICTIM IMPACT [ 28 ] Three victim impact statements were filed by the Crown. L.S., K.C.’s mother, describes suffering a profound and painful loss from the death of her son. She is unsure whether she will be able to cope with her grief.

Her son’s death caused her to lose her job, which resulted in her having to move into a friend’s basement. She has been put under further financial strain as a result of the cost of K.C.’s funeral. She has also written a moving poem describing her sense of loss and nightmarish pain. It is clear she will struggle to find any sense of healing or closure. [ 29 ] S.L., K.C.’s grandmother, describes in her statement enduring pain as a result of her grandson’s death.

She owned a home with a swimming pool that K.C. and her other grandchildren played in, but which now causes her such grief to think about that she has had to put the home up for sale. She too has written a poem which eloquently describes hers and her entire family’s sorrow from K.C.’s death. [ 30 ] Finally, I have the statement of M.E., K.C.’s girlfriend. It is truly tragic to read about the grief a person so young has experienced as a result of this senseless crime. Ms. M.E. has been deeply impacted by K.C.’s death. It is clear that she, too, will struggle to find any relief from her profound feelings of grief.

LEGAL PARAMETERS [ 31 ]

Section 3 of the YCJA sets forth what is described in the statute as the “Policy for Canada with Respect to Young Persons”. It provides for a criminal justice system for young persons that is separate from that for adults, and which recognizes the differences in maturity and diminished moral blameworthiness for the offences young persons commit. [ 32 ] This

section of the Act places emphasis on rehabilitation and reintegration, as well as proportionate accountability to reflect the level of maturity of young persons. [ 33 ] The purpose and principles of sentencing under the YCJA are set out in s. 38.

It is important to note that in imposing a fit sentence for young persons, courts must consider: the least restrictive sentence possible; the sentence most likely to rehabilitate and reintegrate the youth; the sentence most likely to promote a sense of responsibility in the youth and acknowledgment of the harm done to victims and community; similar sentences imposed for similar offences; and ensure the sentence is not more severe than the sentence an adult would receive. [ 34 ] In addition, and especially relevant in these proceedings, sentencing courts must consider alternatives to custodial sanctions particularly for Indigenous young persons.

[35] Factors sentencing courts must consider in imposing sentence for young persons include: their role in the offence; the harm doneto victims; pre-sentence detention; previous findings of guilt; and any other aggravating and mitigating circumstances. [36] Youth sentencing courts may impose custodial sentences for offences of violence.

However, before doing so the court mustconsider all alternatives to custody raised at the sentencing hearing that are reasonable and determine that none is consistent with theprovisions of s. 38 and 39(2) to (4) before doing so. [37] Available youth court sentences are set out in s. 42 of the Act. In this case counsel are in agreement that Mr. C.G. be sentenced toa three year Intensive Rehabilitative Custody and Supervision Order (s. 42(2)(r)(i)(B)). Counsel agree that the requirements of ss. (7) ofthe Act have been met in this case. Mr.

C.G. has been diagnosed with conduct disorder, ADHD and alcohol use disorder (in remission).Additionally, reports confirm that he would benefit from treatment as a result of his history of child neglect, possible social anxiety andpossible traumatic stress disorder. [38] The PSR describes a proposed IRCS plan that includes: assessments; education or vocational support and training; culturalprogramming and gatherings; individual outpatient substance abuse counselling; tattoo removal; and in-patient substance abusetreatment. The psychological report details how the proposed plan will reduce Mr.

C.G.’s risk of committing a serious violence offence. [39] Finally, the Provincial Director has confirmed the purpose of the IRCS plan is available and Mr. C.G.’s participation in it isappropriate. SIMILAR SENTENCES [40] As has been observed in manslaughter sentencing cases, not only for youths, there is a very broad range. In this matter Crown hasprovided a list of authorities that includes: R. v. J.S., 2016 BCPC 449; R. v. A.L.A.W., 2021 BCPC 178; R. v. B.W., 2019 MBPC 20; andR. v. A.D., 2011 BCSC 501. [41] Crown places particular reliance on R v.

S.N.J.S., 2013 BCSC 852 (aff’d 2013 BCCA 379) in arriving at their proposed sentence.In S.N.J.S., the accused was a 16-year-old Indigenous female who was convicted of manslaughter after a trial. The victim and her friendsverbally abused the accused. Eventually, it led to a physical confrontation between the accused and the victim. The two exchanged blowsand wrestled on the ground. During the altercation, the accused pulled a knife from her purse and said, “I’ll stab you”. The two startedfighting again. The accused stabbed the victim in the neck and the victim continued approaching the accused.

The accused stabbed heragain on the collarbone, inflicting the fatal wound. [42] The accused was intoxicated. Throughout the proceedings, even at the time of sentencing, the accused denied responsibility. Shedid not have a criminal record, did not have any mental-health issues, came from a good family background and was classified as a lowrisk to re-offend. She was 19-years-old at the time of sentencing. [43] Justice Barrow imposed an 18-month custody and supervision order with the first nine months to be served in custody.

He wrotein part at para. 62: Just sanctions must have meaningful consequences for a young person and must be assessed in light of the seriousness of the crime andthe young person's degree of responsibility. That can and does on occasion conflict with what would be appropriate if rehabilitation andonly rehabilitation were the goal of the process. A disposition that is served entirely in the community is not, in the circumstances of thiscase, in my view, sufficient to hold SNJS adequately accountable for her actions.

Although I accept that stringent conditions imposed aspart of a community-based disposition can be "meaningful," in this case, they would not be sufficiently meaningful. [44] The British Columbia Court of Appeal upheld the sentence imposed from the court below. [45] Counsel for Mr. C.G. relies on the same authorities as those presented by Crown, but argues that A.L.A.W. bears greatersimilarity to the case at bar. In that case the female young person, while intoxicated, stabbed another young person who ultimately bledto death.

The accused young person had tragic personal circumstances, but following the offence, she successfully engaged in anintensive rehabilitative program. Psychiatric and psychological reports recommended against incarceration. The court in the end imposeda 24 month IRCS sentence with no component of it spent in custody. The court cited the BCCA in R. v. Preston (B.C.C.A.), (BC CA), [1990] B.C.J. No. 2886 in stating that sending an already rehabilitated offender back to jail would interfere with hisrehabilitation needs and was perhaps not the best way to proceed.

ANALYSIS [46] Before beginning my analysis it is important to understand the shear tragedy of what has taken place in this case. K.C., a youngIndigenous man, just like Mr. C.G., was killed in an utterly senseless act of violence. I am aware that his friends and family have beenseverely traumatized by this offence. I am also aware that no sentence I impose will compensate them for their loss.

Still, it is my sincerehope that with the conclusion of this sentencing hearing they will find some pathway toward healing. [47] In considering the appropriate sentence in this matter I note the following aggravating factors: the use of a weapon; the victimwas unarmed; there was minimal provocation by the victim; the victim was caught by surprise and unable to do anything to defendhimself; and the level of violence was significant. [48] I also take into account the victim impact. The effect of Mr. C.G.’s offending on the family and friends of Mr.

K.C. is significantand profound. [49] But I also consider the following mitigating factors: 1. Mr. C.G. has been engaging successfully in rehabilitative programs since being released on bail on June 16 2022. This includescompletion of a full time attendance program.

2. He has maintained sobriety since his release. 3. He has engaged with youth probation and forensics. 4. He has secured meaningful employment with an employer who regards him highly. 5. He has regained his driving privileges. 6. He is remorseful for his offending behaviour. [ 50 ] Aside from his unique antecedents, which include various mental health findings, there are significant Gladue factors present in Mr. C.G.’s background. As such I find that his moral culpability for his offending conduct is diminished. [ 51 ] I have also carefully considered the authorities submitted by counsel.

While I have found some general guidance in them, sentencing in any matter, but especially in Youth Court, is a highly individualized process. No two cases will ever be the same, no two offenders will ever be the same. I am mindful of the approach taken by other courts, but ultimately I must be guided by the philosophy behind the YCJA in arriving at a fit sentence for this offender who has committed this offence. [ 52 ] What factors most significantly into my decision is a consideration of the timing of Mr.

C.G.’s other offences on his record, and, more importantly, his response to community supervision for those other offences. I wish to make clear, in this particular case I consider Mr. C.G. to be a first time offender. That is, at the time of this offence he did not have a criminal record. I am mindful that Mr. C.G. was involved in similar conduct before this offence, but he was charged with that offence as well as others involving violent behaviour after the index offence. It is critical to note that once Mr.

C.G. disposed of those matters, and then secured his release after more than three months in custody, he has been fully compliant with all court ordered interventions. These sanctions and this bail were specifically geared toward addressing his use of alcohol, as well as mental health needs, thereby reducing his risk for future offending. [ 53 ] In my view, Mr. C.G.’s efforts over the last 15 months demonstrate that he is successfully rehabilitating himself. He has maintained sobriety. He has secured good, meaningful employment. He has surrounded himself with a positive peer group.

He has fully engaged with his probation officer. He sees a psychologist on a weekly basis, a schedule, I found out that would be disrupted with a custodial sentence. Overall, it is clear to me that the community supervision Mr. C.G. has been subject to is achieving its intended goal. [ 54 ] The program that has been developed for this IRCS is specifically geared toward addressing Mr. C.G.’s unique rehabilitative needs. It is a plan that would add to and in my view enhance the supervision that is already in place.

I am satisfied that the proposed IRCS is one that in the circumstances of this offence and this offender aligns with those principles underpinning the YCJA , and achieves the correct balance of those factors the Act requires me to consider. [ 55 ] I am especially aware of the gravity of Mr. C.G.’s offending conduct. However, when I consider that he has spent the equivalent of 167 days in custody in connection to this sentence, I see little benefit to sentencing Mr. C.G. to what would amount to a period of custody of approximately 2.5 months, assuming the low end of the Crown’s proposed range.

Indeed, I see much more to be gained by ensuring the continuity of ongoing treatment in the community. [ 56 ] Accordingly, I find that a fit sentence for this offender for this offence is one of time served plus one day followed by a three year less one day IRCS. I fix the period of remand time to 167 days using the adult offender formula of 1.5 to 1 day for the 111 actual days spent in custody. The terms of the sentence will be as follows: 1.

You shall: a. keep the peace and be of good behaviour; b. appear before the youth justice court when required by the court to do so; c. report to the provincial director immediately on release, and then be under the supervision of the provincial director or a person designated by the youth justice court; d. inform the provincial director immediately on being arrested or questioned by the police; e. report to the police, or any named individual, as instructed by the provincial director. 2.

You shall advise the provincial director of the your address of residence on release and after release report immediately to the clerk of the youth justice court or the provincial director any change a. in that address; b. in your normal occupation, including employment, vocational or educational training and volunteer work; c. in your family or financial situation; and d. that may reasonably be expected to affect your ability to comply with the conditions of the order. 3.

You shall not own, possess or have the control of any weapon as defined by the Criminal Code , including: a. firearms, and ammunition; b. cross-bows, prohibited or restricted weapons or devices, or explosive substances;

c. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d. any imitation firearms or weapons, including any compressed air guns or bb/pellet guns; or e. any related authorizations, licences and registration certificates, and you must not apply for any of the above items. 4. 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. 5.

You must report in person to a Youth Worker at [omitted for publication] by 3 p.m. today, October 3, 2023, and after that, you must report as directed by your youth probation officer. 6. You must live at an address approved in writing in advance by your Youth Worker and you must provide your Youth Worker with your phone number if you have one. You must not change them without prior written permission from your Youth Worker. 7. You must obey a curfew by being inside the place where you live and regularly sleep between 8 p.m. and 7 a.m. The exceptions are: a.

You have the prior written permission of your Youth Worker. Such permission is to be given only for employment or other reasonable purposes. b. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. You have consented in court to providing proof of your attendance at the healthcare facility if requested by your Youth Worker. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or Youth Worker attends or calls to check on you during the curfew.

If you are given permission by your Youth Worker, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. If you are outside the place where you are living during the curfew or house arrest hours and a peace officer requests to see the permission, you must show it to the officer. 8. You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription. 9.

You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. 10. Having consented in court, you must attend, participate in and complete any intake, assessment, program, treatment, or a full time live-in treatment program as directed by your Youth Worker. This may include programming treatment for: a. Alcohol or substance use. b. Psychiatric and psychological health. 11. Having consented in court, you must: a.

Report to Youth Forensic Psychiatric Services, Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your Youth Worker. b. Attend all scheduled appointments with your doctor, psychiatrist, psychologist, counsellor and mental health worker. c. Take all medications and medical treatment prescribed for you. d. Provide your Youth Worker with the names, addresses and phone numbers of your doctor, psychiatrist, psychologist, counsellor and mental health worker. e.

Authorize your Youth Worker to give all professional identified in this condition a copy of this order. f. Authorize your Youth Worker to tell all professionals identified in this condition that if you do not follow this order, they have your permission to inform your youth probation officer. g. Sign any document that is necessary for your Youth Worker and all professionals identified in this conditional to check your attendance and completion of any intake, assessment, counselling, or treatment program.

If you decide not to follow the terms of this order, you must immediately report this in-person to your Youth Worker and tell them why. If their office is closed, you must return immediately on the next business day during regular business hours and speak to them. 12. Having consented in court, you must sign any document that is necessary for your Youth Worker, doctor, psychiatrist, psychologist, counsellor, or mental health worker to share information concerning your attendance and completion of any intake, assessment, counselling, or treatment program. 13.

You must not possess any knife outside your residence, except for the immediate purpose of preparing or consuming food, or for

purposes directly and immediately related to lawful employment or cultural ceremonies or practices. 14. You are not to reside in any residence where any firearms, ammunition or other weapons may be found. 15. You must participate in an Intensive Support and Supervision Program as directed by your Youth Worker. 16. You must complete 40 hours of community work under the direction of your Youth Worker.

Your community work services must be completed within the first 12 months of this Order. [ 57 ] Pursuant to s. 51 of the YCJA , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited devise, ammunition, or explosive substance for 10 years from today. [ 58 ] Manslaughter is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code , I authorize in Form 5.03 the taking of samples of bodily substances from you for registration in the DNA National Databank.

Within 14 days of today, you must attend at the [omitted for publication] RCMP Detachment and submit to taking of the samples. This order is valid until executed. [ 59 ] I order that the knife seized in this investigation is forfetied. _____________________________ The Honourable Judge D.H. Silverman Provincial Court of British Columbia