R. v. L.A., 2023 BCPC 12

Citation: R. v. L.A. 2023 BCPC 12 Date: 20230111 File No: 5245-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REX v. L.A. PUBLICATION BAN PURSUANT TO s. 110(1) and 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT PUBLICATION BAN PURSUANT TO s. 486.4(2) OF THE CANADIAN CRIMINAL CODE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. DOULIS Counsel for the Crown: R. Roach Counsel for the Defendant: K. Aimetz Place of Hearing: Prince George , B.C.

Date of Hearing: April 11; June 22, August 11, 2022; January 11, 2023 Date of Judgment: January 11, 2023 [ 1 ] On August 11, 2022, after a two day trial, I convicted L.A. of the following three offences charged on Information 5245-1 committed on January 15, 2021, in Prince George, British Columbia:

a. assaulting [D.A.] with a weapon (a knife) contrary to s. 267(

a) of the Criminal Code; b. unlawfully causing bodily harm to [D.A.] contrary to s. 269 of the Criminal Code; and c. possessing a weapon (a knife) for a dangerous purpose contrary to s. 88(1) of the Criminal Code. [2] We are before the court today to sentence L.A. for these offences. [3] The Supreme Court of Canada recognizes that sentencing any offender is a difficult art involving innumerable factors.Sentencing young offenders is even more daunting because typically they are adolescents in the throes of significant and rapidphysiological, psychological, and emotional development.

Hence, at sentencing, the Court is often dealing with an individual who ismarkedly changed from the one who committed the offence. Circumstances of the offence [4] The circumstances of the offence are set out in my Reasons for Judgment are indexed as R. v. L.A., 2022 BCPC 163 . [5] On January 15, 2021, D.A. was in Grade 10 and two days shy of his sixteenth birthday. On that day he was hanging out withfour other youths, T.S., J.P., R.A., and L.A. At the time of the offence, T.S. was 14 years old and in Grade 9; J.P. was 15 years old; L.A.was 13 years old, and in Grade 8. R.A. is 18 months older than L.A.

R.A. was 16 years old at trial and 17 at L.A.’s sentencing. [6] In my August 11, 2022, Reasons for Judgment, I commented, “this case underscores the Supreme Court’s finding in R. v.Jobidon, (SCC): there is no social utility in a fistfight.” This bears reiteration. [7] In the early evening of January 15, 2021, the five youths, D.A., T.S., J.P., R.A., and L.A., were at the Pine Centre Mall andMcDonald’s on Massey Drive, in Prince George, BC. At approximately 9:00 p.m., they decided to head home. Their route home took theyouths on a trail in Carrie Jane Gray Park behind the YMCA and baseball diamonds.

It was dark and the only lighting was peripheralfrom distant streetlights. [8] The youth stopped on the trail briefly so T.S. could go to the bathroom. During this hiatus, L.A. and D.A. began to play wrestle,which resulted in D.A. being stabbed and L.A. being charged and ultimately convicted of the offences for which he is now before thecourt for sentencing. [9] L.A., now 15 years old, is before me for sentencing under the Youth Criminal Justice Act. L.A. has never denied stabbing D.A.His defence was that of accident and self-defence.

L.A. had never denied possessing a knife, but rather, he denied possessing it for “apurpose dangerous to the public peace.” [10] At the time of the offence, and then at trial, and again at sentencing, L.A. expressed extreme remorse for injuring D.A. in themanner he did. Submissions and exhibits [11] This matter came before me for sentencing in today in Prince George Provincial Court, on January 11, 2023.

I heard submissionsfrom the Crown and Defence and I received into evidence the following exhibits: Exhibit 1: A Pre-Sentence Report of Youth Probation Officer, Melissa Lawrence, dated September 15, 2022, and filed with the Court onOctober 7, 2022; Exhibit 2: A Psychosocial report of Katrina Ludwig, Psychiatric Social Worker (“PSW”) of Youth Forensic Psychiatric Services, datedSeptember 15, 2022, and filed October 13, 2022; and Exhibit 3: The Psychological Assessment Report of Dr. Noa Schwartz, a Registered Psychologist of Youth Forensic PsychiatricServices, dated October 5, 2022, and filed October 13, 2022.

Objectives of the YCJA [12] L.A. was 13 years old when he committed the offence for which he is being sentenced and thus is a “young person” as definedby the Youth Criminal Justice Act, SC 2002, c 1, (the “YCJA”). The YCJA sets out a sentencing regime completely different from thatestablished under the Criminal Code. The predominant principles of sentencing and the available sentence ranges are dramaticallydifferent for youths and adults.

With the enactment of the YCJA, Parliament created a separate criminal justice system for young personsin recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system: seeR. v. D.B., 2008 SCC 25, para. 41; R. v.

S.J.L., 2009 SCC 14 . [13] The YCJA holds that the youth criminal justice system “is intended to protect the public by holding young persons accountablethrough measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person” by“promoting the rehabilitation and reintegration of young persons who have committed offences”: YCJA, s. 3(1)(a). Thus the appropriatesentencing principles under the YCJA are accountability, proportionality, rehabilitation and reintegration: YCJA, s. 3(1)(b). [14] Section 3(1)(

c) of the YCJA states: (

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, whereappropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitationand reintegration, and iv. respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal youngpersons and of young persons with special requirements . . .

Purpose of sentencing under the YCJA [15] Section 38(1) of the YCJA states the purpose of youth sentences is to hold young persons accountable through just sanctions thatensure meaningful consequences for them and promote their rehabilitation and reintegration into society, thereby contributing to thelong-term protection of the public. Principles of YCJA sentencing [16] Section 38(2) of the YCJA specifies that: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who hasbeen 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 offencecommitted 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 thatoffence; (

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; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; 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. [17] The YCJA is clear that rehabilitative measures intended to address problems that appear to have caused the young person tocommit an offence must not result in a sentence that is disproportionate to the seriousness of the offence committed. The Supreme Courtof Canada in R. v. B.W.P. R. v. B.V.N., 2006 SCC 27 , commented the protection of the public is a long-term outcome of asuccessful youth sentence.

Factors to be considered [18] Section 38(3) of the YCJA requires a youth court judge to consider a number of specific factors in in determining an appropriatesentence, including: 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.

Sentencing options

[ 19 ] Section 42(2) of the YCJA provides the court with a list of sentencing options in escalating intrusiveness. These options range from a reprimand in the least serious cases to an intensive rehabilitative custody and supervision in the most serious violent offences. The options are not mutually exclusive. A court can impose any one or more of the sentences that are not inconsistent with one another: s. 42(2) .

Section 42(14) of the YCJA provides that for most offences, the maximum combined duration of sentences is two years (unless it is one of the serious offences for which an adult could receive a sentence of life imprisonment, in which case the maximum custodial sentence in youth justice court is three years). Custodial sentences for young offenders [ 20 ] The

preamble to the YCJA expresses the need to discourage incarceration as a criminal penalty for non-violent young persons. Although, s. 39(1) limits the use of custodial sentences, they are available where the young person has committed a violent offence. A violent offence as defined in s. 2 of the YCJA includes one that causes bodily harm.

Position of the parties [ 21 ] The Crown seeks a four month deferred custody and supervision order (“DCSO”) followed by 12 months’ probation, and some ancillary on the following terms and conditions: DCSO L.A. must: a. report to the Youth Probation Officer as directed; b. reside where directed and obey the house rules; c. regularly attend school; d. abide by a condition of house arrest with exceptions for attending school, extracurricular activities, employment, medical emergencies, counselling, or with the written permission of the Youth Probation Officer, preapproved in advance; e. attend counselling as directed by the Youth Probation Worker for anger management, psychiatric and psychological health ; L.A. must not: f. contact D.A. or go anywhere D.A. may be except: i. for the purposes of providing an apology in a manner directed by his Youth Probation Officer; or ii. for the purposes of engaging in a restorative justice conferencing program to satisfaction of youth worker iii.

D.A. consents to the contact; g. possess any knives with the exception for employment and eating food; h. possess any weapons as defined in the Criminal Code ; Probation: 12 months i. L.A. will be on probation for 12 months’ on the same terms as the DCSO, except the house arrest provision will be substituted for a curfew from 8 p.m. until 6 a.m. each day with the same exceptions. Ancillary orders j. the knife seized by the RCMP in their investigation of this matter will forfeit to the Crown; k. as the offences under s. 269 and 267(

a) are primary designated offences, a DNA Order; l. a stand alone weapons prohibition; and m. an order that all reports filed as exhibits in this sentencing proceedings be sent to the Youth Probation Officer for the purposes of assisting with case management.

Defence Position [ 22 ] The defence sees a Conditional Discharge with six to eight months’ probation, which will include: a. counselling through the Youth Probation Officer; b. a prohibition against L.A. possessing, knives or weapons; c. a prohibition against L.A. having any contact with D.A., or going to D.A.’s residence, school or workplace, with the exception: i. that he can attend at D.A.’s school for the purposes of engaging in extra curricular activities, such as football games; and

ii. to provide an apology as directed by his Youth Probation Officer. [ 23 ] The defence does not oppose the ancillary orders the Crown seeks. Sentencing options under the YCJA [ 24 ] The sentencing options available to the Youth Justice Court are set out in s. 42 (2) of the YCJA , which state, in relevant part: Youth sentence 42

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , the court shall impose a sanction set out in paragraph (

q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate: . . . (

c) by order direct that the young person be discharged on any conditions imposed by the court in accordance with paragraph 38(2) (e.1) and may require the young person to report to and be supervised by the provincial director; . . . (

k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years; . . . (

p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate. [ 25 ] Sections 55 and 56 of the YCJA state: Condition that must appear in orders 55

(1) The youth justice court shall prescribe, as a condition of an order made under paragraph 42(2)(

k) or (l), that the young person appear before the youth justice court when required by the court to do so. Conditions that may appear in orders

(2) A youth justice court may, in accordance with paragraph 38(2) (e.1), prescribe as conditions of an order made under paragraph 42(2) (

k) or (

l) that a young person do one or more of the following: (

a) report to and be supervised by the provincial director or a person designated by the youth justice court; (

b) notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change of address or any change in the young person’s place of employment, education or training; (

c) remain within the territorial jurisdiction of one or more courts named in the order; (

d) make reasonable efforts to obtain and maintain suitable employment; (

e) attend school or any other place of learning, training or recreation that is appropriate, if the youth justice court is satisfied that a suitable program for the young person is available there; (

f) reside with a parent, or any other adult that the youth justice court considers appropriate, who is willing to provide for the care and maintenance of the young person; (

g) reside at a place that the provincial director may specify; (

h) comply with any other conditions set out in the order that the youth justice court considers appropriate; and (

i) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order. Communication of order 56

(1) A youth justice court that makes an order under paragraph 42(2)(

k) or (

l) shall (

a) cause the order to be read by or to the young person bound by it; (

b) explain or cause to be explained to the young person the purpose and effect of the order, and confirm that the young person understands it; and (

c) cause a copy of the order to be given to the young person, and to any parent of the young person who is in attendance at the

sentencing hearing. [26] A DCSO is similar to a conditional sentence under s. 742.1 of the Criminal Code of Canada. It is imposed when the Crown hasmade out the criteria for the imposition of a custodial sentence. The youth is permitted to remain in the community for the duration of theDCSO, subject to supervision by probation officers. The maximum length is six months. If the young person breaches the terms ofDCSO, the youth court can order they serve the remainder as if it were a custody and supervision sentence pursuant to s. 109(2)(

c) and s.42(2)(

n) of the YCJA. DCSO is sometimes considered a “last chance” sanction before actual committal custody. [27] Section 42(5) of the YCJA provides that a DCSO is available only if “the young person is found guilty of an offence other thanone in the commission of which a young person causes or attempts to cause serious bodily harm.” Serious bodily harm can include eitherphysical or psychological harm. Sentencing authorities [28] The Crown has provided the Court with to cases: R. v. K.T.W., 2012 BCPC 52, and R. v. K.S.V., 2015 SKPC 35. [29] K.T.W. is a decision of Judge C.

Baird Ellan of the BC Provincial Court wherein she describes a DCSO sentence as follows: [16] The sentence proposed is not a jail sentence, but it is the next most severe option under the Act. It requires that the Court findthat the young person is eligible for custody, under

section 39. Our Court of Appeal has referred to a deferred custody order as a custodyorder, presumably in light of the significant restrictions and consequences attached to such orders: R v. R.C.W.M., supra. [30] K.T.W. predates the 2012 amendments to the YCJA under the Bill C-10: Safe Streets and Communities Act, S.C. 2012, c. 1(“SSCA”), which came into force on October 23, 2012. With the SSCA Parliament expanded the definition of “violent offence” set out ins. 2(1) of the YCJA to include offences that could endanger the life or safety of another person by creating a substantial likelihood ofcausing bodily harm.

This broader definition was intended to increase the range of offences that will be eligible for a custodial sentenceunder this

section of the YCJA.

Prior to the enactment of the SSCA, a DCSO was unavailable for a “serious violent offence,” whichmeant “an offence in the commission of which a young person causes or attempts to cause serious bodily harm.” [31] Still, K.T.W. is a case where the Youth Court Judge imposed a DCSO on a young person who pled guilty to using a knife tocause serious injury to two individuals during an altercation. [32] In K.S.V. the young person entered guilty pleas to one count of robbery (s. 344 of the Criminal Code) and one count of havingher face masked with intent to commit an indictable offence (s. 351(2) of the Criminal Code).

K.S.V. went into a grocery store with threeother young offenders and one adult, with their faces mostly covered. The adult co-accused held an imitation BB gun to the head of theclerk and threatened him. The group robbed the store of cash and various other items. K.S.V., then 16 years old, took only some cookiesand a drink. K.S.V. did not have a criminal record; she had always attended school and was a good student. Her family was strong andsupportive. K.S.V. had been compliant while on her undertaking since the offence.

The victim suffered ongoing fear and anxiety,especially when he had to work alone. [33] The Youth Court sentenced K.S.V. to a three-month open custody and supervision order followed by 18 months’ probation,subject to multiple conditions. The sentencing judge noted that under the YCJA, the proportionality principle had primacy. In this case,although K.S.V. was not the ringleader, she was responsible in that she knew what was going to happen and was an active participant inthe offence.

The court took into account that K.S.V. had confessed, been cooperative with the police and had identified the otherperpetrators and that she had complied with her previous court order. [34] The Crown tendered this case primarily its discussion about whether K.S.V. would have been eligible for a deferred custody andsupervision order. It followed the enactment of the SSCA, which precluded the use of a DCSO if the young person if found guilty of anoffence, in the commission of which, the young offender caused or attempted to cause serious bodily harm. R. v.

McCraw, (SCC), the Supreme Court held that “serious bodily harm” could include a psychological injury that interfered with the integrity,health, or well-being of a victim. This definition has been applied in a number of sentencing decisions under the YCJA: see: R. v. C.Z.,2021 BCPC 25, at para. 34, citing R. v. BS, 2017 MBCA 102. [35] The Crown points to those sections of K.S.V., where Judge Anand considers the availability of a DCSO for robbery.

Specifically,the Crown points to: a. a DCSO is only available if a custodial sentence could be imposed under s. 39(1) of the YCJA (para. 25); b. the offence committed by K.S.V. (a masked robbery with an imitation firearm) satisfied the definition of a “violent offence” as setout para. 2 of the YCJA as it included the element of bodily harm (para. 25); c. where the index offence (robbery) constituted a violent offence allowing for a custodial sentence, which included a DCSO, a DCSOmay still be precluded pursuant to s. 42(5)(

a) of the YCJA, if in committing the offence the young offender caused or attempted to causethe victim “serious bodily harm” (para. 26); d. in K.S.V., the court had evidence the offence caused the victim “psychological hurt or injury that interferes in a substantial way withthe victim’s psychological integrity, health or well-being” (para. 28); e. in K.S.V., the Crown failed to satisfy the Court beyond a reasonable doubt K.S.V. intended to cause the victim serious psychologicalharm (paras. 29-30). The court did, however, find the psychological harm was reasonably foreseeable in the circumstances of that case(para. 30); f. at para. 31 in K.S.V., Judge Anand when on to state:

[31] Simply because custody could be ordered in relation to a young person and a deferred custody and supervision order is precludedfrom being made, it does not mean that the youth justice court necessarily should impose a custody and supervision order.

Indeed, s.39(2) of the YCJA states that even when the gateway to custody is open, a custodial sentence shall not be imposed unless the court hasconsidered all alternatives to custody that are reasonable in the circumstances and unless the court has determined that there is not areasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in s.38.

Thus defencecounsel’s submission that the appropriate sentence for K.S.V. consists of a probation order may be found to have merit if the resultingsentence is in accordance with the purpose and principles set out in s.38. [36] Judge Anand determined the K.S.V.’s case called for the imposition of a custody and supervision order because the alternativeswere not reasonable or adequate to hold the young offender accountable for the offences nor would they would have meaningfulconsequences for K.S.V. In the context of the crimes committed.

Judge Anand sentenced K.S.V. to an additional three month opencustody and supervision order followed by 18 months’ probation. Defence authorities [37] Counsel for L.A. provided the court with the following authorities: (

a) R. v. Kibangula, 2021 BCSC 1431 (“Kibangula”); (

b) R.v. Manahan, 2018 BCPC 332 (“Manahan”) ; (

c) R. v. Smith, 2018 BCPC 266 (“Smith”) . [38] In Kibangula, Justice Mayer of the B.C. Supreme Court, allowed the offender’s appeal of a suspended sentence with two years’probation imposed by the sentencing judge. Mr. Kibangula was 25 years old. He pled guilty to assault causing bodily harm for deliveringa “sucker punch” to the victim’s face, meaning Mr. Kibangula struck the victim while the victim was not looking. The victim fell into aglass gate and required plastic surgery to repair the injuries to his face. The appellate judge admitted evidence of the offender’s post-sentencing rehabilitation.

Justice Mayer substituted a conditional discharge for the suspended sentence imposed by the Provincial Court.Applying the test set out in R. v. Fallofield, (BC CA), Justice Mayer concluded a conditional discharge was in the bestinterests of the accused and not contrary to the public interest. At para. 22, the Court considered the five sentencing authorities whereinthe sentencing judge had imposed a conditional discharge. These authorities include Smith and Manahan, upon which the defence in thiscase also relies. In Kibangula, Justice Mayer also considered the case of: a. R. v.

Harper, 2020 BCPC 226, wherein the offender pled guilty to assault causing bodily harm. Mr. Harper “sucker punched” thevictim in the back of the head causing him to fall to the ground where victim was then fatally stabbed by another person. Mr. Harper wasa 25-year-old first offender of Indigenous heritage. Judge Bahen granted him a conditional discharge with 24 months probation; and b. R. v. Miletic, 2020 BCPC 154, in which Judge Sudeyko convicted Mr. Miletic of assault causing bodily harm after a trial. Mr. Mileticwas found to have sucker punched another player during an amateur soccer game.

He broke the victim’s orbital bone and caused thevictim to suffer the ongoing negative effects of post-concussion syndrome. Judge Sudeyko described the offence as “cowardly andserious.” Mr. Miletic was 44 years old, had no criminal record, and had lived a pro-social lifestyle. The Crown sought a suspendedsentence with 18 months probation and 50 hours community work service. Despite Mr. Miletic’s lack of remorse, Judge Sudeykogranted him a conditional discharge with 12 months probation. c. I note that Miletic was recently referenced in R. v.

Hambleton, 2021 BCPC 130 , a decision of Judge Brecknell of the PrinceGeorge Provincial Court. On January 26, 2021, after a lengthy trial, Judge Brecknell found Mr. Hambleton guilty of the offence ofassault causing bodily harm. The offender was in his middle forties at the time of the offence; he had no criminal history; he had “anexcellent reputation among his family and friends for being a fair, honest, and a gentle person.” Judge Brecknell imposed a conditionaldischarge with nine months’ probation. d. R. v. Sinclair, 2016 ABPC 209, wherein the Alberta Provincial Court found Mr.

Sinclair guilty after trial of assault with a weapon.Judge T.C. Semenuk described the assault as “sudden and vicious.” Mr. Sinclair head-butted the victim then struck him in the face with abeer bottle. The victim suffered serious injuries including a broken nose and a broken orbital bone on the left side of his face. After theassault, the accused fled the scene with his friends. The accused was a youthful offender with no criminal record and a positive pre-sentence report.

He accepted responsibility for his actions, expressed genuine remorse for his behaviour, and demonstrated insight onhow his actions impacted the victim and his family. Judge. Semenuk imposed a conditional discharge with 18 months’ probation. [39] Smith is a decision of Judge J.P. MacCarthy of the British Columbia Provincial Court. Mr. Smith was 18 years old at the time ofthe offence. He had no criminal record. Mr. Smith left school before graduating, but had an excellent work record. He was activelyengaged in hockey and other positive extra-curricular activities. Mr.

Smith’s long-term career goal was to pursue a career in the military.He was concerned that a criminal conviction may have some negative impact on this career goal. The Crown sought a suspendedsentence and Mr. Smith sought a conditional discharge. The victim was 17 years old. As a result of Mr. Smith’s sucker punched to theface, the victim sustained extensive injuries to his mouth and teeth. He also sustained a concussion, facial bruising, and a laceration to hisforehead. Judge MacCarthy considered as mitigating, Mr. Smith’s young age, his expressed remorse, and the fact he took responsibilityfor the offence.

Judge MacCarthy considered aggravating, the seriousness of the physical and emotional injury to the victim and itsfinancial consequences ($12,239.79 for dental reconstruction). [40] At para. 38 of Smith, Judge MacCarthy discusses the availability of a conditional discharge. He states: [38] The test that is outlined in Fallofield is that the granting of a discharge must first of all be in the interests of the Accused and thesecond leg of the test is that it must not be contrary to the public interest.

Fallofield draws the following conclusions with respect to theapplication of s. 730 for discharges, and they are as follows:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the Accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the Accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the Accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the Accused is a person of good character, without previous conviction, thatit is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry ofa conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by [what is now s. 730] should not be exercised as an alternative to probation or suspended sentence.

(8) Section [now 730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity inthe application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in thecircumstances of cases. [41] In granting a conditional discharge with 24 months’ probation, Judge McCarthy gave primary consideration to Mr. Smith’s youngage and lack of criminal record. [42] Manahan is another sentencing decision of Judge McCarthy of this Court. Mr. Manahan was charged with assault causing bodilyharm.

He sucker punched the victim in the face, causing him significant facial injuries requiring surgery. The victim, who worked in thepub where the assault occurred, had intervened in an attempt to resolve a high-conflict and escalating situation as a result of Mr.Manahan becoming intoxicated and abusive to other patrons. As the result of the assault, the victim sustained enduring pain andsuffering. He lost three to four weeks’ time at work and his wages for that period. Mr. Manahan was 55 years old first offender and ajourneyman painter.

The Crown sought a suspended sentence with 12 months’ probation; the defence sought a conditional discharge. [43] Judge McCarthy considered R. v. Jassal, 2007 BCPC 231, a decision of Judge M.R. McMillan, in which the offender wascharged with assault causing bodily harm against his spouse. The assault was carried out in front their two and a half year-old daughterwho repeatedly asked him to stop assaulting her mother. In Manahan, Judge McCarthy cites the following passages from Jassal: [46] The prerequisites for the imposition of a conditional sentence are set out in the case of R. v.

Fallofield [citation omitted] adecision of our Court of Appeal. [47] Those principles are usefully summarized in some of the cases provided by Ms. Tiwana. They are: R. v. Saunders, [1993] B.C.J.2887, a decision of our Court of Appeal allowing an appeal and substituting a jail sentence with a conditional discharge where the chargewas assault causing bodily harm; R. v. Carroll, [1995] B.C.J. 365, a decision of our Court of Appeal, where the Court in that casereiterated the principle that the public interest in general deterrence does not preclude a discharge; R. v.

Tone, [2003] B.C.J. 1688, adecision of Associate Chief Justice Dohm, where the accused pled guilty to an assault causing bodily harm and where the complainantsuffered very serious injury, a conditional discharge was imposed; and R. v. Bertuzzi, (ON CA), [2004] B.C.J. No.2692, a decision of my brother Judge Weitzel, where he imposed a conditional discharge in a case of an assault causing bodily harm inthe context of a hockey game. [50] In Jassal, Judge McMillan relied on Chief Justice Dohm’s oft-cited decision of R. v. Tone, 2003 BCSC 880 .

In Tone,the offender broke into the victim's home, delivered 10 to 15 blows to the victim’ neck, head and face. The victim’s head hit an ironrailing rendering him unconscious. The victim suffered significant head trauma and permanent scarring below his eye. Mr. Tone pledguilty to assault causing bodily harm. The offender expressed guilt, remorse and regret for the assault. ACJ Dohm granted Mr. Tone aconditional discharge on his completing one year probation. [44] In Manahan, Judge MacCarthy reproduces the following passage from Tone: [50] . . .

It has previously been stated that the need for general deterrence militates against the granting of a conditional discharge inalmost all cases involving violence resulting in injury; see R. v. Wood (1975), (ON CA), 24 C.C.C. (2d) 79. However,conditional discharges have been granted in previous cases of assault causing bodily harm where the circumstances of the case havewarranted it; see R. v. Walker, [1982] B.C.J. No. 1046 (QL) (CA); [and] R. v. Carroll. [45] In Manahan, Judge MacCarthy considered mitigating Mr. Manahan’s remorse and the fact he accepted responsibility for theoffence.

Judge MacCarthy found aggravating the significant physical and emotional harm and financial consequences to the victim. Alsoaggravating was the fact that Mr. Manahan assaulted the victim, who was carrying out his duties as an employee of the pub were theassault occurred. [46] I pause to note that Manahan was cited by Judge Harris in R. v. Pacella, 2020 BCPC 236 , wherein the accused pledguilty to assaulting three police officers. Mr. Pacella was 50 years old, had no criminal record, and lived a pro-social life style. TheCrown sought a suspended sentence with 12 months’ probation.

The defence sought a conditional discharge. In granting the conditionaldischarge, Judge Harris stated at para. 48: [48] As for whether a discharge is contrary to the public interest, I observe that discharges are available for any offence that does nothave a mandatory minimum sentence. As such, a discharge is available for the offence of assaulting a police officer.

I also note thepublic interest in deterrence and denunciation does not preclude the judicious use of the discharge provisions: Fallofield, at page 455. [47] I gleaned from noting up the defence authorities that there are shortage of cases where the court has granted a conditional

discharge for serious assaults: see R. v. Li, 2019 BCSC 648, para. 28, cited in Kibangula. As discussed above, the court has granted aconditional discharge even in cases where the accused was found guilty after a trial, and for offences such as assault causing bodily harmor assault with a weapon. Also see: R. v. R.A.R., 2016 BCPC 276 ; R. v. Stard, 2016 BCPC 441; R. v. Ranspot, 2017 BCPC 101; R. v. Popovich, 2021 BCPC 278 ; R. v. Miller, 2015 BCSC 1052 ; R. v. Delgren, 2019 BCSC 396. Circumstances of the offender [48] L.A. is 15 years old.

His circumstances and antecedents are particularized in detail in the three presentence reports markedExhibits 1, 2, and 3 in this sentencing hearing. I have read the reports and I have listened to the Crown and defence counsel’ssubmissions on their content. [49] L.A. is the biological son of C.M. and K.A. He was born and raised in Prince George and resides with his parents and R.A., hisolder brother, R.A. is now 18 years old and L.A.’s only sibling. By all accounts L.A. is blessed with close, loving and supportive family. [50] L.A. is of Nisga’a and Metis heritage.

The Court was not provided with any Gladue report, however, I can take judicial notice theNisga’a, are an Indigenous people of Canada. They reside in the Nass River valley of north-western British Columbia. I also know theMétis are Indigenous peoples who primarily inhabit Western Canada. Métis is used to describe communities of mixed European andIndigenous descent across Canada.

The Métis originated largely in Western Canada and emerged as a political force in the 19th century,radiating outwards from the Red River Settlement in Manitoba. [51] A fit sentence balances a number of factors personal to L.A., many of which militate toward a non-custodial sentence. Theseinclude those factors set out below. Age at the time of the offence: Generally speaking, very young offenders are considered less morally blameworthy. L.A. was only 13 atthe time of the offence, which is very “young” even under the YCJA, which sentences youth between the ages of 12 and 17.

At trial, I wasstruck at how young L.A. was at the time of the offences, not only in terms of his age, which was 13, but also by his physical, emotionaland social immaturity; Age at the time of sentencing: Today, at the date of his sentencing, L.A. is 15 years old. I have no doubt that in the 24 months betweenthe offence date and sentencing, L.A. has matured and gained some insight into his behaviour; Participation: L.A. was solely responsible for this offence.

In other words, there is no suggestion the other young persons present at thetime in any way instigated, assisted in, or encouraged the offence; Health: The offender’s physical, mental and emotional health is highly relevant in sentencing. L.A. suffers from anxiety, but otherwiseis physically, mentally and emotionally healthy; Previous findings of guilt: L.A. is a first-time offender. He has no previous findings of guilt and there are no other outstanding mattersbefore the court.

This, however, is not surprising, give he was only 13 at the time of the offence; Indigenous heritage: L.A. is an Indigenous offender, and the principles espoused by the Supreme Court of Canada in R. v. Gladue, , and R. v. Ipeelee, 2012 SCC 13, are relevant and applicable. Family and community support: L.A. comes from a very close and pro-social family who have stood by him throughout this process.He has had a supportive and stable upbringing. He says his parents are the most important adults in his life; they are actively involved inhis life; they provide him with support and serve as his role models.

Youth Probation Worker (“YPW”) Lawrence states that L.A.’sparents are “also cooperative and supportive of L.A. in these stressful circumstances and support the Youth Justice and Court process.” L.A.’s family lives a prosocial lifestyle. No one in L.A.’s household abuses substances. Both his parents work full-time. K.A. has workedas a warehouseman for [omitted for publication] for over 30 years. C.M. works as a residential support worker at [omitted forpublication] in Prince George. Bail (duration and conditions): L.A. was on bail since January 16, 2021.

His original bail conditions (Undertaking under the YCJA)included the following conditions: a. L.A. was to report to the Youth Probation in Prince George, as directed; b. L.A. was prohibited from having any contact or communication directly or indirectly with D.A.; c. L.A. was prohibited was prohibited from going anywhere D.A. is expected to be; d. L.A. was prohibited from possessing any knives, except for eating or preparing food; and e. L.A. was not to posses any weapons as defined in s. 2 of the Criminal Code.

Bail (performance): L.A. performance on bail has been “very good.” He’s been compliant with his all conditions for two years. YPWLawrence states that L.A. has been very cooperative and open with her. She says, “He is polite and pleasant at all times.” L.A. has had nosubsequent involvement with RCMP or Youth Justice. Pre-sentence rehabilitation: L.A. has adopted a relatively prosocial and healthy lifestyle. Specifically: a. L.A. does not and has never consumed alcohol, drugs or substances of any kind, and they were not involved in the offence before thecourt; b.

L.A. is in Grade 10, at [omitted for publication] School, in Prince George, BC. L.A. fully intends to complete high school and has

plans for his future; c. L.A. is athletic and an avid football player. He would love to have the opportunity to pursue a professional football career, but understands that may not come to fruition. He also has an interest in the trades and next year may opt for a blended program which will allow him to take his academic courses while learning a trade. He may also consider joining the military; d. L.A. also participates in sports other than football, such as recreational basketball; and e. L.A. spends his free time actively engaged in pro-social activities with his friends.

There are no reports of L.A. engaging in a negative lifestyle or associating with negative peers. Ongoing risk to the community: In assessing his risk to reoffend, Dr. Schwartz took into consideration L.A.’s “limited insight, and cognitive distortions with a tendency to deny and minimize.” Dr. Schwartz opined that these risk factors “may be targets of treatment intervention.” That said Dr. Schwartz assessed L.A.’s risk of re-offence as low. Psychiatric Social Worker Ludwig (“PSW Ludwig”) describes L.A .’s struggles with school.

Although his teachers consider L.A. a capable student, over the years he has required supports due to his lack of organization, non-participation, or failing to hand in his school work. L.A.’s school records indicate a long history of behaviour issues, which include non-compliance, absences, disrespect, inappropriate language, interfering with others’ learning, and “focusing/redirection issues.” Nevertheless, PSW Ludwig reports that L.A. as no history of criminal activity, violence or aggression, prior to the offence for which he is now before the court.

She states at para. 52 that L.A. is identified by his family as a friendly, and cooperative individual who excels at sport. One of his most oft described strengths is his for compassion, empathy, consideration of others, respectfulness and willingness to help others. YPW Melissa Lawrence is extremely positive about L.A.’s circumstances, his behaviour, and his future prospects. In fact, she does not consider an Intensive Support and Supervision Order as necessary. Rather YPW Lawrence recommends a period of probation on the terms and condition set out on page 8 of her report with the addition of counselling.

L.A. has indicated in Court his willingness to engage in counselling; I find L.A. presents a low risk of reoffending generally or violently. I draw this conclusion because L.A. has not demonstrated any criminal behaviour other than that for which he is being sentenced. Guilty plea : L.A. was convicted after a trial, which is not aggravating but it does deprive him of the mitigating effect of a guilty plea; Remorse: Despite his non-guilty plea, L.A. has consistently expressed remorse for injuring D.A., and I accept his remorse as genuine.

YPW Lawrence states: [L.A.] looks back on the offence with regret and is ashamed at what he did to another person. Pre-sentence custody: L.A. has not spent any time in pre-sentence detention as a result of this offence. He was arrested and released on a Promise of a Young Person to Appear and Undertaking to a Peace officer on January 16, 2021. Recommendations [ 52 ] Dr. Schwartz made the following recommendation in his Psychiatric report [73] [L.A.] may benefit from participating in offence specific treatment provided through Youth Forensic Psychiatric Services (YFPS).

Offence specific treatment provides individual counselling with a treatment focus on experience, expression, and control of emotions; understanding the experience and expression of aggressive impulses; and the offence cycle and relapse prevention specifically. A focus of treatment may include improved insight, reality testing and problem-solving.

L.A. may also benefit from improving stress management, coping skills, interpersonal skills, and self-discipline. [74] [L.A.] may benefit from psychiatric follow up to address symptom of anxiety as needed. [L.A.] may access psychiatric follow-up through YFPS. [75] [L.A.] may benefit from support and encouragement to maintain regular school attendance. He may benefit from a structured and organized school environment that supports his attendance, participation, and progress. He may benefit from the support of a school counsellor and/or peer tutor to focus on academic skills and to fully complete work assignments.

He may benefit from continued participation in activities he enjoys such as technology, physical education, and sports. [76] [L.A.] may benefit from medical follow-up to assess and treat what he described as “ringing in my ears.” [77] [L.A.] may benefit from family therapy available through YFPS. Family therapy may improve [L.A.’s] ability to communicate with family members, express himself openly, and participate in mature and healthy conflict resolution. Impact on the victim and the community a. The age of the victim: D.A. was 16 at time of the offence, and although young, he was not as young as L.A.; b.

Victim vulnerability: At the time of the offence, D.A. was older, stronger and taller, than L.A.; c. Victim Impact: Neither the Crown Counsel nor the Youth Probation Officer were able to obtain a Victim Impact Statement from D.A. It seems he wants to put this incident behind him and does not welcome any further involvement in the court process in this matter; and

d. Community impact: The Court can consider the prevalence of violent offences in the community in involving young male adolescents. Collateral consequences [ 53 ] The collateral consequences are not necessarily aggravating or mitigating factors as they do not relate to the gravity of the offence or the level of responsibility of the offender: R. v. Pham , 2013 SCC 15 and R. v. Suter , 2018 SCC 34 . Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal, or occupational implications.

L.A. has reported to the Youth Probation Officer the community supervision conditions have had an adverse impact on his ability to fully participate in his favour school team sport, of football. Disposition [ 54 ] When imposing sentence upon a young offender, a youth court judge must be cognizant of the inherent differences between adults and young persons and the different approaches to sentencing adopted by the Criminal Code and the YCJA . There is a presumption of a diminished moral blameworthiness for young persons who commit crimes.

Because he is young, I must consider the long-term impact of any sentence I impose upon L.A. The sentence I impose must facilitate his rehabilitation while at the same time hold him accountable for his actions. [ 55 ] The YCJA indicates that a sentencing judge “may” consider the sentencing principles of specific deterrence and denunciation. These principles militate toward a custodial sentence for violent offences in order to reflect their seriousness and to hold the youth accountable. Accountability, however, does not automatically invite a custodial sentence.

A youth can be held accountable through lesser sanctions and the YCJA directs judges to use custodial sentences only when no other sentence is reasonable. [ 56 ] L.A.: On August 11, 2022, I found you guilty of assault with a weapon (a knife) contrary to s. 267 (

a) of the Criminal Code ; unlawfully causing bodily harm to D.A. contrary to s. 269 of the Criminal Code ; and possessing a weapon (a knife) for a dangerous purpose contrary to s. 88(1) of the Criminal Code . [ 57 ] I am sentencing you to conditional discharge with 8 months’ probation pursuant to s. 42 (c)(

k) of the Youth Criminal Justice Act , on the following terms and conditions: Condition 1: You shall keep the peace and be of good behaviour. Condition 2: You shall appear before the Youth Justice Court when required to do so by the Court. Condition 3: You shall report in person to the Youth Worker no later than 3:00 PM on January 12, 2023, at the Youth Probation Office located at 1040 Third Avenue, Prince George, BC, and after that you shall report as and when directed by the Youth Worker.

Condition 4: You shall reside in BC, and you shall not change your residence at any time without first obtaining the written consent of the Youth Worker. Condition 5: You shall obey all rules and regulations of your residence. Condition 6: You shall have no contact or communication, directly or indirectly, with [D.A.] except as follows: except for writing a letter of apology under the direction of your Youth Worker who will attend to deliver it to [D.A.]. You shall not attend at, or be any place which you know to be the residence of [D.A.] except: (

a) while on a highway in a moving motor vehicle in transit to somewhere else; and (

b) except you can attend the school which [D.A.] attends for the purpose of sporting events. Condition 7: You shall not possess any weapon as defined in

Section 2 of the Criminal Code . Condition 8: You shall not possess any knife outside of your residence except for the immediate preparation or eating of food, or for purposes directly and immediately related to your school work. Condition 9: You shall attend, participate in and successfully complete any assessment, counseling or program as directed by the Youth Worker. Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to:

a) anger management. Condition 10: You shall attend school regularly and not be absent except in accordance with either a medical certificate or the advance written consent of the Youth Worker. Condition 11: You shall apologize to [D.A.] in the manner you are directed by the Youth Worker to the satisfaction of the Youth Worker. Ancillary Orders [53] As part of your sentence, I also make the following ancillary orders: a. Count 1, assault with a weapon, contrary to

section 267 (

a) Criminal Code 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 the 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 C.Z.; and, b. Pursuant to s. 487.051(4) of the Criminal Code I further make an order in Form 5.041 that you shall attend at the RCMP Detachment in Prince George, B.C., on or before April 30, 2021, during regular business hours, and submit to the taking of the samples.

[ 58 ] Pursuant to s. 119(1) ( s)(ii) of the YCJA , I order that a copy of the reports marked Exhibits 1, 2, and 3 in this sentencing hearing together with my August 12, 2020, Reasons for Judgment and these Reasons for Sentence be released to the Youth Worker for case management purposes. ______________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia