R. v. M.M.O. Date:, 2017 BCPC 78

Citation: R. v. M.M.O. Date: 20170223 2017 BCPC 78 File No: 5441-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. M. M. O. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Youth Matter - Restriction on Access, s. 118 & s. 110 YCJA BAN ON PUBLICATION 486.4(2) CCC Counsel for the Crown: S. Bains Counsel for the Defendant: M. Tammen, Q.C. Place of Hearing: North Vancouver , B.C.

Date of Hearing: February 23, 2017 Date of Judgment: February 23, 2017 [ 1 ] THE COURT: M.M.O. has pled guilty to one count of sexual assault on M.N. arising October 8, 2016. [ 2 ] The circumstances of the offence are that M.M.O., at age 16, attended a party with his older brother, who was 19. The vast majority of people at this party were his brother's age. He and the victim of this offence were three or four years younger than the majority the people at the party. [ 3 ] Alcohol was freely provided to these two young people who were under the legal age of drinking. The party involved "binge drinking".

Indeed, even M.M.O.'s older brother became so intoxicated his mother was called to attend to him. M.M.O., the accused before me, also engaged in binge drinking as did the 15-year-old female victim. [ 4 ] At one point, the victim became so intoxicated she asked the person hosting the party if she could lie down and was directed to a bedroom. She recalls that, over the course of the evening, a number of people came to check on her. At one point, M.M.O. came to check on her.

She asked him to go and get her cell phone, and she recalled him leaving and then coming back later. [ 5 ] When he returned, he asked if she was okay. She said she was not because she had over consumed alcohol. He sat on the bed beside her, pulled down her tights and underwear, and touched the external area of her genitalia. She said "Stop, what are you doing?" He did stop, got up and left. She then got up and left the room and advised the person hosting the party. The party then ended.

M.M.O.'s mother and the victim's mother attended, and they were taken home. [ 6 ] The next day, the victim's mother attended to the O.’s home.

By that point, M.M.O. had already prepared a letter of apology which, by all accounts, was sincere. [ 7 ] M.M.O., the accused, was so intoxicated he has no recollection whatsoever, in other words had a black out, for the offence itself, for the aftermath of the party ending, his mother coming to get him, and being taken home. [ 8 ] Immediately following this offence, his parents, who although separated remain mutually supportive of him, ensured that he started attending counselling.

He has done so and there is a very positive letter from the counsellor who has been seeing him. [ 9 ] There are also a number of very positive character letters from friends, family friends, a hockey coach, and others. I will describe all of that material as reflecting very positively on M.M.O. as a human being. [ 10 ] He has an older brother, as I have already mentioned, who bears some responsibility for what occurred on this evening. All of his family remain close and supportive.

He also has a stepmother and a stepsister who are supportive of him and to whom he is close. [ 11 ] From the very beginning, even though he could not remember what happened, he has not contested what the victim said occurred. He has accepted full responsibility and been very remorseful, and this remorse has been borne out by his behaviour since the time of the offence. [ 12 ] He has withdrawn socially. He has recognized that he has an issue with alcohol.

In the presentence report, there are three previous incidents referenced where he drank to the point of gross intoxication, probably to a toxic blood alcohol level. As a result he has not drunk any alcohol since the time of this offence, and is attending Alcoholics Anonymous as well. [ 13 ] He entered a very early guilty plea. He has no prior criminal history. He has addressed his rehabilitation by attending counselling and remaining sober. [ 14 ] I also pause to note that the victim and her family in this matter declined to provide any victim impact statements.

However one can only infer that this kind of acting out had a negative impact emotionally on the victim in this matter. [ 15 ] The Crown and defence have put a joint submission before me for a conditional discharge, and it is an entirely appropriate disposition, and we will get to the terms of that shortly. [ 16 ] I want to take the opportunity to put in my reasons some of the personal characteristics that are shared between the presentence report, the counselling report, as well as the character letters. [ 17 ] They describe M.M.O. as an intelligent young man, who is very emotionally and mentally healthy, and mature for someone his age.

He is described as compassionate, empathetic, gentle, and respectful of other people, including females. He is a very capable young man with a very promising future. He is athletic. Most importantly, it is clear he has taken what he did on that night with the utmost seriousness. I have no doubt that as long as M.M.O. never permits himself to binge drink in the future, we will never see him before the court again, and he will go forward in his life and have a very positive future. [ 18 ] So, Mr. O., if you will stand. [ 19 ] Mr.

O., I am granting you a conditional discharge and you will be placed on probation for 18 months. You can be seated again. [ 20 ] THE ACCUSED: Thank you, Your Honour. [ 21 ] THE COURT: The terms of the probation will be that you will keep the peace and be of good behaviour, and appear before the court when required to do so by the court.

[ 22 ] You must report in person by no later than 4:00 p.m. today to a youth court worker at 301-224 West Esplanade in North Vancouver, and report thereafter as and when directed by the youth court worker. [ 23 ] You will provide your current residential address to the youth court worker and not change that without their prior written permission. [ 24 ] You will abide by a curfew of 11:00 p.m. to 6:00 a.m., seven days a week. And I am going to include another option there, to provide, unless you are in the immediate company of your mother, L.O., your father R.O., and should I include A.O.? [ 25 ] MR.

TAMMEN: I went back and forth on that one, but I think for this driving to and from the parents' house, probably, subject to my friend. [ 26 ] THE COURT: Any objection to that? [ 27 ] MS. BAINS: I would suggest just for the driving to -- back and forth. My concern with just leaving a broad is that A.O. was at the party, he was drinking. [ 28 ] THE COURT: Why do we not say, unless A.O. has consumed liquor? [ 29 ] MR. TAMMEN: Yes. [ 30 ] MS. BAINS: Yes, that -- that would be sufficient. [ 31 ] MR. TAMMEN: Yes. Thank you. [ 32 ] THE COURT: Or your brother, A.O.

You may only be in the company of your brother A.O. outside your curfew hours if he is not under the influence of alcohol. Is that correct? [ 33 ] MR. TAMMEN: What about if he has not consumed any alcohol. [ 34 ] THE COURT: Yes, all right. [ 35 ] MR. TAMMEN: So there is no grey area about whether he is under the influence. [ 36 ] THE COURT: Provided he has not consumed alcohol within the preceding 12 hours. [ 37 ] MR. TAMMEN: Yes.

Good, thank you. [ 38 ] THE COURT: During your curfew hours, you must be continually inside your place of residence, save and except for attending to any medical emergencies for yourself or any member of your immediate family. You must immediately present yourself at the door of your residence upon the demand of any youth court worker or peace officer to determine compliance with the curfew condition of this order. [ 39 ] You are to have no contact, direct or indirect, with M.N.

You are not to attend at any residence, place of employment or place of education at which you know M.N. to reside, work or attend. [ 40 ] You will attend for, accept and complete, to the satisfaction of your probation officer any counselling, to include but not limited to substance abuse management counselling. [ 41 ] You must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription, and then only according to the dosage prescribed. [ 42 ] And you will perform 50 hours of community work service under the direction of and to the satisfaction of your youth court worker, and complete those hours -- I am going to say within the first six months? [ 43 ] MR.

TAMMEN: Yes. [ 44 ] THE COURT: Or maybe to the end of summer. How many months is that? Within the first six months of your period of probation. [ 45 ] Any comments or concerns? [ 46 ] MR. TAMMEN: Just one, Your Honour. And it's just a question. I got so hung up on the older brother's supervision. [ 47 ] Did that term contain the -- was it -- the final part of two in the PSR, that is the exception with written permission of the youth worker as well. Is that there? [ 48 ] THE COURT: Oh no, I did not include that. [ 49 ] MR. TAMMEN: The reason that that is important, Your Honour, is this.

Because of ice time issues, there is the occasion where he might have to play a hockey game or practice and he will be getting a ride home with a different parent. But that is known to him, so he can get the written permission in advance from the supervisor. [ 50 ] THE COURT: Okay. No objections?

[ 51 ] MS. BAINS: No objection to that. [ 52 ] THE COURT: Right. So I will add that. [ 53 ] MR. TAMMEN: Thank you. [ 54 ] THE COURT: Prior to the passage where he can be out with his brother? [ 55 ] MR. TAMMEN: Yes. [ 56 ] THE COURT: It will include the words "or except with the written permission of the youth worker, which permission you shall carry on your person and present upon the demand of any police officer". [ 57 ] MR. TAMMEN: Yes, thank you, Your Honour. [ 58 ] THE COURT: All right. I am going to order a transcript of my reasons and there should be three copies. Or sorry, and original and -- never mind.

I am ordering my reasons. I will deal with how many copies we get, and that is through the -- [ 59 ] MR. TAMMEN: Thank you, Your Honour. I'm obliged. [ 60 ] MS. BAINS: Thank you, Your Honour. [ 61 ] THE CLERK: [Indiscernible]. [ 62 ] THE COURT: Oh and -- sorry. [ 63 ] THE CLERK: There's a conditional discharge and then there is also probation, is it -- [ 64 ] THE COURT: It is just a conditional discharge, correct -- [ 65 ] THE CLERK: Okay. [ 66 ] THE COURT: -- under the Youth Act ? [ 67 ] MS. BAINS: Yes. [ 68 ] MR. TAMMEN: Yes. [ 69 ] THE COURT: Thank you.

It is all one order. [ 70 ] THE CLERK: Thank you, Your Honour. [ 71 ] THE COURT: There is not two different things. [ 72 ] THE COURT: I had something in mind, but it is gone. Oh, right. DNA? [ 73 ] MS. BAINS: Yes, Crown is obliged to ask for a DNA order. [ 74 ] MR. TAMMEN: I have never opposed any of those orders. I question the utility of it for someone so young, Your Honour. [ 75 ] THE COURT: In all of the circumstances, and for the reasons I have just given, I am not going to require M.M.O. to provide a sample of his DNA. [ 76 ] MR.

TAMMEN: Thank you. [ 77 ] THE COURT: And he is not -- there is no SOIRA for a youth? [ 78 ] MR. TAMMEN: No. [ 79 ] MS. BAINS: It is my understanding there isn't. [ 80 ] THE COURT: No. Okay. [ 81 ] M.M.O., if you will stand again. [ 82 ] I hope you listened to my reasons, sir. You are going to have a copy of those in case this ever arises in your future. I am sure that has been explained to you, that that is a possibility. [ 83 ] You are one of those who, as a very young person, has learned just how destructive alcohol can be.

We who sit in these courts see, and you can ask any of the lawyers who you apparently have in your life about this, how frequently decent people do terrible things under the influence of alcohol. And unfortunately you have learned that at a very young age. [ 84 ] But you can go forward in your life, playing hockey, dealing with other young men, going to university, and you can be a positive force to ensure that people drink responsibly, know what can happen when they do not, and be a positive example and force as a result of this experience.

[ 85 ] THE ACCUSED: Thank you, Your Honour. [ 86 ] MS. BAINS: Thank you, Your Honour. [REASONS FOR SENTENCE CONCLUDED]