R. v. K.B., 2020 BCPC 153

Citation: R. v. K.B. 2020 BCPC 153 Date: 20200806 File No: 6063-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.B ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. ORMISTON YOUTH MATTER RESTRICTION ON ACCESS s. 118 & s. 110 YCJA Counsel for the Crown: J. Lester Counsel for the Defendant: C. Terepocki Place of Hearing: Chilliwack, B.C. Date of Hearing: March 10, 2020 Date of Sentence: August 6, 2020 [ 1 ] THE COURT: On December the 18th, 2019, K.B. (Mr.

B.) entered a guilty plea to one count of uttering or conveying a threat to cause death or bodily harm to the students and staff of [omitted for publication] in Chilliwack B.C., contrary to s. 264.1 of the Criminal Code . The offence occurred on September the 23rd of 2019 when Mr. B. was a 16-year-old student at that high school, he is now 17 years old. This sentencing is governed by the Youth Criminal Justice Act (or YCJA ).

Facts [2] On September 23, 2019 at approximately 9:30 p.m., police were alerted to a series of online messages posted by Mr. B. Theposts were seen by several fellow students, one of whom was sufficiently alarmed to involve her parents. The threatening conductincludes a photograph Mr. B. posted online that was labelled "School Bomber Started Kit". The photograph depicts some of the keycomponents of a pipe bomb and a detailed hand drawn diagram of Mr. B.'s school. Commentary and related online communicationsinclude Mr.

B. saying, "I hate people […] and that hundreds of students who will die during the assembly deserve what's coming." Theonline exchange includes references to "blowing students off" with pipe bombs and also to notorious school shootings that have occurredin the United States. Police apprehended Mr. B. who was taken that evening for a psychiatric evaluation; however, he was not certified. [3] Mr. B. lives with his mother and police searched his room in her residence. They found the component pieces depicted in theSchool Bomber Started Kit photograph Mr. B. had posted online.

Police also located a handwritten note in a trashcan in Mr. B.'s room,the note could be described as a suicide note which indicated that he had warned people about this day. Principles of Sentencing [4] The principles of sentencing under the YCJA are not the same as those established in the Criminal Code. Section 3(1)(

b) of theYCJA states that youth criminal justice is a separate system based on the principle of the diminished moral blameworthiness of theoffenders because of their age. As a result, sentencing under the YCJA must focus on rehabilitation and holding young people responsiblewith proportionate and meaningful sanctions. Section 38(2) of the YCJA lists the purposes of sentencing: (

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...; (

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… and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; [5] Subsection (3) says that:

(3) In determining a youth sentence, the youth justice court shall take into account (

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. [6] As counsel have highlighted in their submissions there are good reasons for sentencing judges to want to deter others fromdoing what Mr. B. did. This kind of offence can have a terrorizing and significant impact on our community. However, generaldeterrence is not a principle in youth sentencing, it does not apply in the same way as it does to adults, see R. v. B.W.P. 2006 SCC 27, [2006], 1 S.C.R. 941.

Denouncing unlawful conduct, though, does play a role in sentencing a youth. Following the R. v. B.W.P.decision, Parliament added subsection 38(2)(

f) to the YCJA which states: ...the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. [7] Applying these sentencing principles is an individualized process fitted to the specific offence and the specific offender. This Specific Offence [8] The defining features of this particular offence are:

(1) That Mr. B. threatened a group of people, the students and staff of his high school. The targets of this offence included young people who are entitled to feel and be safe in their school.

(2) Some of the features of this offence show that Mr. B. did more than simply make threatening posts online, he took the step of acquiring some of the parts for a pipe bomb for the photo. Posting the photo of the School Bomber Starter Kit was not an isolated incident in the sense that Mr. B. made comments to his mother and peers at other times about mass killings at schools. The note found in his room suggests that he had given it some serious thought. The nature of the offence required significant action by the school, including an extensive search and notifications to parents and students.

(3) There is not a clear motivation for this offence which makes it different from other cases where students have made threats to avoid exams, or as attempts to manipulate specific people. While Mr. B. does not appear to have been trying to achieve any specific gain for himself as a result of the threat, the foreseeable result of posting these images and comments was that the school community was frightened and deeply impacted. [ 9 ] The principal of [omitted for publication] worked in the school system for 20 years described the uniquely disturbing impact of this offence.

He had to make the difficult decision about how to best protect his students and staff, whether to close the school and how to share the news of the threat with all students, parents, and the wider community. Not surprisingly, he had a number of meetings with concerned parents and teachers in the aftermath of the offence. Students who had seen Mr. B.'s online post first-hand described how they were shaken by it. [ 10 ] In

summary, experienced school staff and young fellow students alike felt genuinely afraid that Mr. B. would carry out his threats and that innocent people could lose their lives.

The year that has passed since this offence has likely settled these feelings but it is worth pausing to remember how in the immediate uncertainty following the threats, it must have been a terrifying experience for students and teachers who really felt they were in danger in a place that they had a duty and an obligation to attend. [ 11 ] When compared to the conduct that often comes before the courts on uttering threats charges the impact of this offence makes it unusual.

But as the Crown has illustrated through the various newspaper articles, the act of students threatening their schools is not entirely unique. It happens. And when it does it understandably captures significant community attention and concern. [ 12 ] The Crown has noted that this offence was easily committed and able to reach many people because the threats were made using the internet. I am not treating this as an aggravating factor per se because I cannot say that Mr. B. meant to use the internet to maximize the harm that he caused. He was 16 years old; 16-year-olds use the internet to communicate. Mr.

B. in particular relied heavily on the internet as a form of communication. [ 13 ] Nevertheless, I think it is important to emphasize both for Mr. B. and other young people that the consequence of posting threatening messages online is that they are easily spread, and this can cause widespread fear and alarm. It may be that some people blur what is private and what is public when it comes to things that they post online, and I would not be surprised if young people who are comfortable in an online world sometimes get the impression that the law does not apply on the internet.

I think it is important to stress here today, although this is probably already clear to Mr. B., that the Criminal Code applies just the same to what you say online as it does to what you say to somebody face to face. And in fact, a threat made online can be particularly powerful and far reaching. This Offender [ 14 ] Mr. B. is a 17-year-old young man described by his counsel and others as intelligent and sensitive. He is a first offender with no criminal record. The reports and input from his youth court worker and psychologist shed some light on what brought Mr. B. to commit this offence. While Mr.

B. has had the immense benefit of family who love and support him, his young life has not been without struggles. His relationship with his natural father, Mr. M., has been troubled and inconsistent. Mr. M. himself lived through severe childhood trauma and the psychologist's report prepared for this sentencing suggests that Mr. B. has been impacted by that intergenerational trauma. Sadly, Mr. M. committed suicide this year. [ 15 ] Mr. B. himself has suffered through depression, anxiety, self-harm and suicidal tendencies from a very young age and he first tried to commit suicide, he says, when he was seven.

He has been hospitalized in the past for self-harm. He was being treated by a psychiatrist before the offence, however, the year leading up to it was tumultuous for Mr. B. His condition appeared to worsen, including an attempt to overdose on prescription medication. When Mr. B. was arrested he was taken for a psychiatric assessment and not certified at that time. However he has been diagnosed with anxiety disorders, major depressive disorder, and a borderline personality trait. [ 16 ] Particularly relevant to this sentencing is the fact that starting a very young age, Mr. B. was bullied in school.

Having read the reports about Mr. B.'s school experiences it is not hard for me to imagine that he must have often felt unsafe at school himself and this is truly a sad example of why bullying in school is such an insidious thing. Mr. B.'s fascination with notorious mass shootings at schools is easier to understand when you consider this background and his growing sense of anger and alienation. By the time Mr.

B. reached high school his principal described him as disconnected and lost in the system, he was associating online with like-minded peers who shared very anti-social ideas. [ 17 ] In his interviews with the psychologist, Mr. B. makes a clear connection between this offence and the bullying that he suffered at school. However, his own motives remain a bit of a mystery. Inconsistencies in what Mr. B. reports to his parents and the different report writers lead me to find that he is somewhat an unreliable historian.

On one hand he admits to his Worker that he intended this to be a suicide bombing but the thought of his own death made him hesitate; however, he told others that he never intended to hurt himself or others. [ 18 ] In the risk assessment portion of the psychological assessment, Dr. Straub (phonetic) says the following: Mr. B.'s lifelong suicidal and mild violent ideation became exacerbated in times of distress, for example, the year preceding the indexed offence.

This paired with victimization, poor coping, ruminative and vengeful tendencies, alienation, poor medication adherence, substance use, anger management difficulties and decompensation in mood fostered the unfolding of negative and harmful solution to his

difficulties. [ 19 ] Dr. Straub reports that Mr. B. "continues to experience considerable hurt and resentment about having been bullied", as well as turning to dark ideologies when he is frustrated with the world generally. [ 20 ] Dr. Straub recognized at the time of writing that report back in March, that Mr. B. has stabilized while on restrictive bail conditions. But she noted that if Mr. B. becomes distressed his risk may be exacerbated again. While Dr. Straub says that Mr. B.'s motivations for treatment were "somewhat low", I find that Mr. B. has proven that wrong.

His youth court worker and his counsellor describe how he has done very well since he was released in the fall of last year. The youth court worker reports he has been consistently compliant with strict conditions and has cooperated with supervision and treatment. His counsellor reports that he has been doing, "Great." [ 21 ] Since our last day in court, Mr. B. has weathered other emotional storms, the death of his natural father and the COVID pandemic which has led to the end of his employment. It is significant that the youth court worker tells me that she has seen a marked change in Mr.

B.'s ability to cope with these hardships and again, this makes me see what the psychologist had to say in a different light. In the words of his Worker he "has demonstrated great strength and resilience in coping with this tragedy and has engaged with all of the supports offered". All indications are that while Mr. B. requires ongoing supervision and attention to his mental health he has thrived outside of the school environment where this offence occurred. [ 22 ] I was encouraged to hear from Mr. B. last day that working with his uncle's business had been so positive for him.

His youth court worker and counsellor saw the positive changes that made in his life, and I understand that his employment ended due to factors beyond his control and that really is unfortunate. I am not surprised to hear that finding new employment is a source of stress for Mr. B. right now and I want to remind him how important that employment was for him. It really was a chance for a new start and Mr. B., you did something no one else could do for you over the past year and that was take real steps towards changing the direction your life was heading.

It is critical that you keep that focus going forward. [ 23 ] Mr. B.'s other source of stress these days is school, which has been a strongly negative force in his life to date. Those around him see his intelligence and his curiosity and I know Mr. B. has been reluctant to do online schooling. But I am encouraging you, Mr. B., to stick with it. You have proved what you are capable of in the work that you did with your uncle and in the perseverance that you have shown through this year. You deserve to have the benefit of an education to open up more doors in the working world. [ 24 ] After his arrest, Mr.

B. spent almost a month in jail as a 16-year-old who had never been in trouble with the law before. I have no doubt that this made an immediate and deep impression on him and despite the relatively recent concerns expressed by the psychologist that Mr. B. does not fully appreciate the harm he caused, his youth court worker says he is beginning to feel more empathy and remorse for what he has done. He has apologized to people. Mr. B.'s guilty plea tells me that he is sorry for what he has done, and he expressed that to me himself in this courtroom last day.

Taking responsibility for his actions in this way is a significant step towards changing his course. Aggravating and Mitigating Factors [ 25 ] In order to impose a sentence that fits the seriousness of the crime and Mr. B.'s degree of responsibility, I have to weigh the aggravating and mitigating circumstances in this case. [ 26 ] The primary aggravating factor is the degree to which this offence impacted both the direct and indirect victims, the recipients of the threat and the people being threatened were young people themselves.

While I do not have victim impact statements from everyone at [omitted for publication], it is safe to infer that this kind of threat would interfere with the sense of wellbeing and safety of students and staff that they should feel when going to school each morning. It is also aggravating that Mr. B. took some steps towards carrying out his threat. The photograph he posted was not some stock image acquired online, it is a picture of actual pipe bomb components found in his room. The note found in his garbage and the dug-up diagram of the school suggests Mr.

B. gave some actual consideration to this plan and it was not simply a momentary lapse in judgment. Mr. B.'s own history of self-harm had taken a disturbing turn towards harming others. [ 27 ] The relatively recent opinion of the psychologist who interviewed Mr. B. in February was that he does not fully appreciate the harm that he caused to others in committing this offence, but I find it is difficult to separate Mr. B.'s perception of this offence from his own health and experiences that he had in school himself. I recognize that in the past year he has come to see the importance of his own wellbeing.

His youth court worker reports he has been perfectly compliant with strict bail conditions including cooperating fully with support workers, psychiatrist, and counsellor. This is a very important factor, in my view. If Mr. B. had not demonstrated such an ability and willingness to cooperate and work towards his own wellbeing this sentence would have been different. [ 28 ] There are significant mitigating factors in this case. Mr. B. has given up his right to a trial, admitting his guilt at an early opportunity. I believe that he is truly sorry for what he did. Mr.

B. has suffered real consequences as a result of this offence already, including incarceration and the fact that he has been prohibited from attending at his high school or any other schools in the district. Analysis [ 29 ] In order to craft a sentence that meets the principles of the YCJA I have to consider what kinds of sentences have been imposed in similar cases. Counsel have pointed to the lack of caselaw in this area, although the newspaper articles helpfully referenced by Crown suggest that this type of thing has happened here in Canada before.

And to be clear, I am not guided by the sentences reported in these articles in the same way I am by the caselaw since we cannot be sure of all the details, but they do hold some approximate value when it comes to the type of sentences imposed and they highlight the need to contribute to the reported jurisprudence. [ 30 ] I have relied on the following cases R. v. Richardson, 2018 ONCJ 171 and R. v. Mirsayah, 2005 BCPC 608 .

Now, notably those offenders were sentenced under the Criminal Code not the Youth Criminal Justice Act ; however, the cases are useful in defining the gravamen of the offence and they satisfy me that the sentence being suggested for Mr. B. is not greater than an adult would receive for

the same offence. While Mr. Mirsayah received a suspended sentence, the offence in that case was different and did not have the same widespread impact. It was not directed at high school students. [ 31 ] What can be imported to the youth context from these cases is that offences where educational institutions are threated must be denounced. In adult court the principles of general deterrence and denunciation are paramount, in the youth context I find that an offence like this requires a sentence that reflects the seriousness of what happened and which helps Mr.

B. to understand the harm that he caused and how serious his actions were. [ 32 ] The YCJA also says that to the greatest extent possible rehabilitation rather than incarceration is the way to reach those goals. I have considered Mr. B.'s own history of mental illness and the events leading up to this offence as factors that lessen his degree of responsibility. This does not mean they are excuses for what happened, in fact Mr. B.'s disregard for his own life is part of what caused so much fear following this offence. The long probation order that will attach to this sentence is meant to help Mr.

B. see how his own wellbeing is connected to the wellbeing of our community. [ 33 ]

Section 39 of the YCJA says that a young person can only be sentenced to jail in certain circumstances, s.1(

a) makes jail an available sanction if a youth commits a violent offence. A violent offence is defined in s.2 to include a threat to commit an offence that includes the causing of bodily harm. In my view, Mr. B.'s incarceration was required in this case in order to denounce his conduct, to show him how serious his actions were, and to drive home that he had to make a change. It really is to Mr. B.'s credit that a lot has changed since October of last year. Mr. B.'s own hard work has made it perfectly clear that he is not a risk that needs to be managed by jail or even a jail sentence in the community.

I find that the focus now needs to be on helping him stay on the right track to live a positive life. While structured supervision needs to remain in place to help him succeed, I am confident that he will. [ 34 ] Now, some of what I have said here today, Mr.

B., probably takes you back to times you are happy to have behind you, and the real message that I want to leave with you here today is that I see the work that you have done and the changes that you have made since last year, and I hope that through this process that you see the strength of the connections that you have to family members who have supported you and the number of people here who want to see you succeed. [ 35 ] The sentence that will be recorded is a jail sentence of one day, that is today, Mr. B. does not need to be taken into custody.

The sentence I would have imposed before pre-trial custody is 40 days incarceration, I am giving him credit for 26 actual days spent in pre- trial detention which with enhanced credit is 39 days. I would have sentenced to Mr. B. to two years of probation but since these reasons were supposed to be delivered in April and this is now happening in August due to the COVID pandemic, the probation order will be four months shorter than it would have been. Given Mr.

B.'s perfect compliance on bail, I am imposing a probation order for 20 months and these are the conditions: [ 36 ] You shall report to a youth court worker right away and after that you will report as directed by your youth court worker.

You shall live at a residence approved of by your youth court worker and not change that address without the prior permission of your youth court worker. [ 37 ] You shall not attend any school in the Chilliwack school district except with the written permission of your youth court worker and you must not be within 100 metres of [omitted for publication] located at [omitted for publication] in Chilliwack, B.C. [ 38 ] You must attend, participate in and successfully complete any intake, assessment or counselling as directed by your youth court worker and for the first six months of this probation order you shall obey a curfew by remaining inside your residence or on the lot in which it is situated between the hours of 10:00 p.m. and 6:00 a.m. each day, subject to the following exceptions (

i) with the written permission of you youth court worker to be outside your residence during the hours specified in the written permission, in which case you are to carry a copy of that written permission on your person and present it to any peace officer or youth court worker who asks to see it, and (ii) (ii) except while you are in the presence of your parent. [ 39 ] You shall not possess any weapon as that term is defined by the Criminal Code , and specifically you shall not possess any firearms and ammunition; cross-bows, prohibited or restricted weapons or devices, or any explosive substances.

You are not to possess anything used or designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation of all the above, including any compressed air guns or BB pellet guns; or any related authorizations, licences and registration certificates, and you must not apply for any of these. [ 40 ] You must not possess or use any device capable of accessing any computer network including the internet, except as permitted by this order and while possessing or using any such device you must (

i) not delete your browsing or chat history; (ii) sign any release of information forms that enable your youth court worker, peace officer or parent to monitor your compliance with this term.

Any information gathered by the youth court worker or parent can be given to a peace officer and provide the device and any password used to lock the device to your youth court worker, parent or peace officer, upon their request to monitor your compliance with this order. [ 41 ] You shall not live in any residence where firearms are present and you will take reasonable steps to keep yourself in such a condition that your social anxiety disorder or major depressive disorder will not be likely to cause you to act in a dangerous way towards yourself or others, or commit further offences.

At the direction of your youth court worker you will attend from time to time for appointments with your psychiatrist to receive medical counselling and treatment as recommended. You shall not be required to submit to any treatment or medication to which you do not consent, but if you do not consent to the recommended treatment or medication you shall notify your youth court worker immediately.

[ 42 ] You shall provide your health care provider, counsellor, psychologist and psychiatrist with a copy of this order and the name, address and telephone number of your youth court worker and you shall tell your health care provider, counsellor, psychologist and psychiatrist that if you fail to take medication as prescribed or fail to keep an appointment with them that they are to tell your youth court worker immediately. [ 43 ] You must participate in the intensive support and supervision program as directed by your youth court worker and you shall participate in any school program as enrolled and not be absent from it, except for a valid medical or other reason approved of by your youth court worker.

If you are not enrolled in a school program, you must seek and maintain employment. (ORAL REASONS FOR SENTENCE CONCLUDED)