R. v. B.J.A.B. Date:, 2011 BCPC 258

Citation: R. v. B.J.A.B. Date: 20110926 2011 BCPC 0258 File No: 5094-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.J.A.B. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: L. Ostry Counsel for the Defendant: D. Walsoff Place of Hearing: North Vancouver , B.C. Date of Judgment: September 26, 2011 [ 1 ] THE COURT: Stand up, please, B. Do you want to say anything yourself before I sentence you? Okay, Mr.

Walsoff has made full submissions on your behalf, so you need not say anything. [ 2 ] You pled guilty to common assault. You were charged with assault causing bodily harm of Mr. M., but you pled to common assault because, as Ms. Ostry quite fairly pointed out, the injuries that he says he incurred are not necessarily either attributed to your actions or cannot be established. [ 3 ] But in his victim impact, when he made his remarks to Ms. Watson when she talked to him, he says the assault significantly affected him. It has been a year so since the event, but he continues to struggle from the consequences.

He said this incident has ended his career as a bus driver. That is how he feels right now; he is not going to drive a bus again. [ 4 ] He reports that he is in a rehabilitation program. He will have to work in lesser capacity, probably make less money because of his fear of driving alone at night, I guess. He is getting some other treatments for both psychological problems and -- he feels that you broke his ribs. That was not established. He had what we call a pneumalthorax. It is a complication of the lung from a kick or a blow or something, okay?

[ 5 ] So it is pretty serious and he does not think you should just get a slap on the wrist. If it were up to Mr. M., I suppose he would have you going to jail, and you can understand how he might feel that way, right? He felt vulnerable. The three of you beset upon him. [ 6 ] Now, I have listened carefully to the circumstances, I have read the presentence report, including your own remarks, and there are some things that we do not know. It was not on the video and there was not another witness. I am prepared to accept that there was some provocation for you in the sense that you took offence because Mr.

M. pushed or elbowed Ms. K. [ 7 ] Provocation is not a defence and you recognize that now. I understand that you wanted to tell your side of the story and why you behaved this way. It is not a defence. You still assaulted him. You were not protecting her. It was all done. He had done what he did with her and you then, and perhaps this other person, went in and caused him some serious discomfort. I will put it that way, okay? It was an assault. [ 8 ] Now, I am sure there were points during that period of time when he did not know what you intended to do, right? He may have thought he was going to die.

There was nobody there. Just you and whoever else was with you. So that is his point of view, right? And I can see that from the perspective of looking at the Youth Criminal Justice system he thinks you are going to get a slap on the wrist. [ 9 ] I am not sure you will see it that way. You are going to have lots of terms to tie you up, some intended to help you along with your issues, one of which is clearly alcohol, and some intended to serve as a form of punishment to you to make it clear to you that you cannot behave in this fashion whether you are drunk or not.

You need to not be drunk and you certainly need to not behave in a violent fashion to anyone regardless of how you think they are treating you. I think you were a little -- you misunderstood somewhat, perhaps, because you were under the influence of alcohol, and clearly you overreacted. [ 10 ] I do not see you as a hardened criminal. You certainly have no prior record. You have had your challenges over the years and that is all outlined in the presentence report. You have tried to do some work and that sort of thing.

You have got some good support in the community and you are hoping to finish Grade 12 at [school name removed] in the next while, I expect. You are in 11 now, is that right? Yes, okay. Good for you. [ 11 ] So the question really at this point is what kind of order I am going to impose upon you.

I think in light of the fact that there is an ongoing alcohol issue and that it is difficult for me to say this behaviour, taking into account the intoxication, was completely out of character for you, I just -- I do not think it is appropriate that you receive a discharge at this point. [ 12 ] Probation is very little different from that. It is a youth record. You will be able to get it expunged in due course or it will be erased, in fact, if you comply and behave well and do not get in some further trouble.

I just agree with the Crown, it is contrary to the public interest for you to receive a discharge. [ 13 ] I am not going to put you on an intensive support and supervision order either. I think that is too severe in the circumstances, all of which I have just remarked upon. It will be a probation order and it will be for a period of one year. You are going to be required by it to report to Youth Probation, to Ms. Watson or whoever down there at 301-224 West Esplanade. You will start up reporting again to her there by noon tomorrow and thereafter as directed.

Sorry, are you going to school tomorrow? [ 14 ] THE ACCUSED: Yes, I am. [ 15 ] THE COURT: Yes, okay. So I do not know if you will get there in time today, so we will say by 5 p.m. tomorrow, and thereafter as directed. [ 16 ] You will attend school as directed and not be absent without a valid medical excuse, okay? [ 17 ] You will attend for and participate in counselling as directed by your youth court worker, including but not limited to the intensive support and supervision program. And we can incorporate, then, Mr. Treadwell into that term or do I need to specify Ayas Men Men? All right, no.

Okay. [ 18 ] You will have no contact or communication directly or indirectly with R.M. except for the purpose of providing a letter of apology. You will write a letter of apology to R.M. to the satisfaction of your youth court worker by November 30 th . I am asking that a copy be sent to the Crown for Mr. M. and a copy as well to myself so I get to see what you have written, and it better be longer than a couple of sentences. [ 19 ] Instead of having you abstain completely -- you are doing some counselling with respect to alcohol and drug problems. I do not want to have you keep coming back here on a breach.

I do not want to encourage you to drink. You need to quit and not drink at all. You may be a person who just is not going to be able to drink at all in your life. That may be the way it is. You will have to make that decision and go to counselling. [ 20 ] What I am going to do is have you not be on any form of public transit, or transportation, while under the influence of alcohol or non-prescription drugs. So if you happen to get drunk, you are not allowed to take a bus, all right, or a taxi, or the SkyTrain, or any form of public transit, okay?

So you have got to call a friend if you get stuck somewhere. [ 21 ] I will have you do community work service and that will be a separate order, but it will be 30 hours by July 31st, 2012, which I recommend be work performed for the benefit of the Squamish Nation through Ayas Men Men Child and Family Services. [ 22 ] Does he still -- I do not know if he had a no contact with K. on his bail. Probably, but what is the situation there? [ 23 ] MR. WALSOFF: Apparently they're still a couple. I don't know if that -- I don't know if there is no contact. Apparently they're still a couple. [ 24 ] THE COURT: Okay.

I would like to say not be under the influence of alcohol and non-prescription drugs while in the presence

of K.K. I do not know if that is going to be doable. Yes. He is saying yes. I think we will do it that way as well. So those are the times when you are not to be drinking or under the influence of alcohol, with K.K. and if you are on public transit. [ 25 ] Okay, that will be it. I have considered the discretionary orders and I am not going to impose them. So no DNA, no firearms. Okay, thank you. Good luck. Do not come back. (REASONS CONCLUDED)