R. v. Yu, 2022 BCPC 220

Citation: R. v. Yu 2022 BCPC 220 Date: 20221014 File No: 68406-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. EMILY YU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L Sarbit Appearing on her own behalf: Ms. Yu Place of Hearing: North Vancouver , B.C. Dates of Hearing: October 21, 22, 28; November 4; December 9 2021; January 11,18; April 26, 27, 29; May 2; June 20, July 19, 29; and August 22, 2022 Date of Sentence: October 14, 2022

[ 1 ] Emily Yu was found guilty of disobeying a court order without lawful excuse contrary to s. 127(1) of the Criminal Code . The order was made by Justice Davies on October 23 rd 2020. Ms. Yu disobeyed that order on November 3 rd 2020. [ 2 ] The maximum penalty is a six-month jail sentence or a $5000.00 fine. Circumstances of the Offence [ 3 ] The order which was disobeyed (the order) was an enforcement order made at the end of protracted proceedings in the Civil Resolution Tribunal (CRT) and in Supreme Court. The proceedings related to Ms.

Yu’s ongoing failure to comply with the by-laws of a strata development in which she owned a townhouse by using it for short-term rentals. During the course of the CRT proceedings she failed to comply with an injunction and was found in contempt. [ 4 ] Eventually, the Strata succeeded in obtaining an order for the sale of her townhouse to recoup the costs incurred during the various proceedings. That order was made on June 25 2020. Ms. Yu failed to comply with that order which resulted in the Strata having to return to court for an enforcement order. [ 5 ] Ms. Yu was present in court on October 23 2020.

She was found in contempt of the June order and fined. She was required to vacate the premises by November 30 2020. Counsel for the Strata emailed her a copy of the order on October 23 2020. [ 6 ] The Strata was required to enlist the assistance of Bailiffs and the police in order to compel Ms. Yu to vacate her unit so it could be shown by a realtor to prospective buyers. On November 2, the Bailiffs posted a notice to her front door advising that they would be entering the unit the next day.

That notice was also emailed to her. [ 7 ] When the Bailiffs and police attended on November 3 2020, two padlocks had been placed on a gate leading to the front door. The notice was still on the door. A locksmith was in attendance and removed the padlocks. The Bailiffs and RCMP were in uniform. Ms. Yu was argumentative and physically resistant. She had to be taken into custody by the police in order to allow the Bailiffs entry. Relevant Circumstances arising from the Proceedings [ 8 ] The trial commenced on October 20 2021. The finding of guilt was entered on April 29 2022.

The sentencing proceedings were delayed to allow for the preparation of a Pre-Sentence Report with a psychiatric component. Ms. Yu chose not to engage in that process. [ 9 ] In order to place her offending behaviour and these reasons in context, I will first address the disordered and unsubstantiated beliefs evidenced by Ms. Yu in her testimony and submissions during the proceedings. I will also set out my conclusions with respect to her cognitive capacity and ability to communicate using the English language. [ 10 ] Throughout the proceedings Ms.

Yu exhibited non-compliant or resistive behaviours and some paranoid thinking patterns. Her problematic conduct and thinking presumably arises from some form of a personality or other disorder. I infer from the history of the matter which resulted in the order being made that these issues have been longstanding. It is for this reason the court ordered a psychiatric assessment to assist in determining whether any disorder contributed to the commission of the offence and to inform the application of the principles of sentence. [ 11 ] The pre-sentence report was necessary as Ms.

Yu did not present as accurate or truthful in her submissions or under oath as a witness. Thus, in order to meet the burden of proof to the balance of probability for any mitigating circumstances, in my view, independent or corroborative evidence was required. [ 12 ] Indeed, the Court implored Ms. Yu to participate in the preparation of these reports as, other than her lack of criminal history, there were no other mitigating circumstances arising from the evidence at trial. [ 13 ] Ms. Yu’s conduct during the trial of this matter was characterized by contempt for the process and for the rule of law.

She was often argumentative, accusatory and defiant. She persisted in pursuing lines of questioning which were clearly not founded in reality. In particular, she repeatedly suggested that the witnesses (and even the judge who issued a warrant when she did not appear for the first day of trial) were imposters. She alleged that most documents were forgeries. [ 14 ] Another theme she pursued was that she was the victim of identity theft. However, she failed to articulate a logical connection between any identity theft and the proceedings which led to the order or her failure to comply with the order. [ 15 ] Ms.

Yu failed to appear for her first appearance but presented at the courthouse the next day, was taken into custody and released. She was also arrested after appearing late for court on the first day of her trial and released later in the day. Despite being warned by the Court, she persisted in arriving late for court sittings. Eventually, arriving on time for each sitting was made a term of her release and she was warned that if she did not arrive on time her release could be revoked and she would be held in custody on the primary ground.

It is of note that she then began to appear on time. [ 16 ] She also failed to ensure her cell phone was turned off for a number of sittings which resulted in the court directing that she was not permitted to bring her cell phone into the courthouse and if she did, and it was not silenced, it would be seized. Following this, she complied by ensuring her phone was silenced. [ 17 ] I infer from this conduct that Ms. Yu is well able to understand directions and change her behaviour when she sees it as being in her interest to do so. [ 18 ] Ms.

Yu also claimed that she did not understand the events that led to the order being made or documents she received because of a lack of understanding of English. However, over the course of the proceedings it became clear that her level of comprehension of

English is quite good and she is able to speak effectively in English. In her submissions at the sentencing proceedings, she filed a letter from a training program she recently completed with an overall mark of 91%. There is no indication this course was completed in a language other than English. [ 19 ] Foundational to my finding the Crown had proved her guilt beyond a reasonable doubt was my conclusion, based on the evidence, that at the time of the offence Ms.

Yu was capable of responding rationally to the circumstances, had a full understanding of the nature and validity of the order and simply refused to comply as she did not agree with the results of the litigation. I was also satisfied that she was mentally competent during the course of the trial. [ 20 ] I find Ms. Yu consciously attempted to manipulate the court as to her competency in English in order to provide her with a potential defence to the charge.

Her testimony about not knowing why the Bailiffs attended at her home in the company of the police on the day of the offence was ludicrous. [ 21 ] I find the fantastical theories and unfounded suggestions made during the trial before me, including her assertion that she is still the lawful owner of the townhouse, were the product of the mind of a desperate person who likely has an unhealthy personality construct. [ 22 ] I also conclude that despite her issues, whatever they may be, she has acted purposefully with a view to escaping liability and has said and done whatever she thought in the moment would best serve her ends.

Antecedents of the Offender [ 23 ] Ms. Yu provided little information about her antecedents. I am not aware how old she is although she would appear to be 40 to 50 years of age. She is the mother to two young adult children. One of her children lives in China and the other lives with their father locally and attends university. [ 24 ] Ms. Yu attends church and sings in a choir.

She shares a home with others, one of whom wrote a reference letter which speaks positively about her as a roommate and now friend. [ 25 ] A member of her church provided a reference letter which accords with my observations of her set out above. She is described as being very bright and hardworking but is someone who needs counselling. He observed that she has no stability in her life and no discipline, focus or realistic goals. She entertains fantasies which are diverting and does not like to see the “bare unvarnished truth” or be realistic.

He further described her as reckless, too ambitious, paranoid, troubled, stubborn and isolated. Ms. Yu included a reply to his letter in which she contests his characterizations and opinions about her and asks him to “fix” those parts. [ 26 ] The course referred to above is the Public Works Technician Technical Training Program. She was a good student. She impressed the lead instructor as being a caring person and of good character. Application of the Principles of Sentence [ 27 ] The principles of sentence are set out in ss. 718 to 718.2 of the Criminal Code .

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. [ 28 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any aggravating or mitigating factors.

The court must bear in mind the principle of restraint and all available sanctions other than imprisonment should be considered. [ 29 ] The objectives of sentencing are to denounce unlawful conduct, to deter the offender and others, to separate offenders where necessary, to assist in rehabilitation, provide reparation and promote a sense of responsibility in the offender and acknowledge the harm done to the community. [ 30 ] During the sentencing proceedings, Ms.

Yu suggested she was hungover or intoxicated and that a medical condition had “flared up” which, in concert, led to a failure in judgement or understanding at the time of the offence. However, she was inconsistent as to whether she was hungover or intoxicated and no suggestion was made to any of the witnesses present at the time of the offence that she was under the influence of alcohol. The medical letters submitted do not speak to any medical condition which could have impacted her judgment. I do not accept her submissions in this regard. [ 31 ] In R. v.

Penttila 2020 BCCA 63 the court was dealing with the issue whether a gambling disorder which led to the commission of a fraud should reduce the moral culpability of the offender. The court found: 68] The attachment of a medical label to an identified cluster of behaviours for diagnostic and treatment purposes does not, however, mean that the diagnosis will always be mitigating. But it is important for sentencing judges to consider whether an offender has a medically recognized disorder and, if so, whether that disorder caused or contributed to the commission of an offence.

In cases of this kind, sentencing judges should, as one aspect of the analysis, consider the evidence addressing the nature and magnitude of the disorder and determine the overall role it played in the commission of the offence: R. v. Badhesa 2019 BCCA 70 at paras. 40 , 42 – 44. [69] A medically recognized disorder, shown to have caused or contributed to the commission of the offence, may be regarded as a mitigating factor warranting a reduction in sentence on the grounds that the offender’s moral culpability is attenuated.

In addition, general deterrence and denunciation, which ordinarily figure prominently in sentencing offenders for thefts and frauds involving a breach of trust, may be entitled to less weight where the offender’s behaviour is attributable to an underlying pathology. [70] Where the disorder is found to have contributed to the commission of the offence, the weight it should be given as a mitigating factor will necessarily be fact-driven and context-dependent. In cases like the one at bar, where the offending conduct occurs

over a lengthy period and involves the repeated unlawful taking of funds, sentencing judges must be particularly attentive to whether the evidence justifies a conclusion that a gambling disorder impaired the offender’s decision-making processes. A sentencing judge’s decision about the weight to be given to a behavioural disorder shown to have played a contributing role in the commission of an offence will, of course, attract a deferential standard of review. … [72] … a more nuanced and flexible approach is required. In my view, this is the inevitable consequence of an individualized sentencing process.

To measure and properly reflect the moral culpability of an offender, sentencing judges must take into account the existence of disorders that are capable of impairing judgment. I understand this to be the cornerstone of this Court’s judgment in Badhesa . … [74} …In a case where a dispute exists about whether the offending behaviour was caused by a gambling disorder, detailed and specific evidence, including medical evidence, will generally be required.

That evidence should set out the diagnosis, the factual foundation upon which the diagnosis rests, whether the disorder was operative at the time of the commission of the offence and, to the extent it can be determined, whether the disorder caused or contributed to the offending behaviour. Ideally, it should also canvass the offender’s prospects for rehabilitation with appropriate treatment.

Such an assessment will usually involve canvassing collateral sources of information. [ 32 ] I am unable to conclude, due to a lack of evidence, that any disorder contributed to the commission of the offence before the court and thus her moral culpability cannot be seen to be diminished. Ms. Yu bears full responsibility for the offence. [ 33 ] The offence before the court is a serious one which undermines the foundations of our society and, specifically, the rule of law. Failing to comply with a court order encroaches on our society’s basic code of values.

The fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society is particularly germane to an offence of this nature. [ 34 ] This offence must be met with a penalty which will serve to denounce such conduct and deter others who would disobey a court order. [ 35 ] I find that there remains some need to specifically deter Ms. Yu from engaging in further interference with the property which was the subject of the order.

After being arrested and released on this matter, she returned to property in the spring of 2021, at which time she asserted a right to possess it. As such, she is not able to say she has been of good behaviour since the offence. As noted above, she continues to assert a right to possess the property as recently as mid-2022. [ 36 ] Ms. Yu has demonstrated no understanding of the seriousness of the offence and has accepted no responsibility for committing the offence. [ 37 ] There is a negligible prospect for any rehabilitative interest which could be served by means of a community based disposition.

I also find that Ms. Yu would be highly unlikely to comply with any terms imposed. [ 38 ] It is clear that Ms. Yu does not need to be incarcerated to protect the public. Aggravating and Mitigating Factors [ 39 ] The offence is aggravated by the brazen nature of this offender’s disregard for the order. [ 40 ] The mitigating factor is her lack of prior involvement with the criminal justice system. [ 41 ] I cannot agree with the suggestion of the Crown that the forced sale of her strata unit is mitigating as the order for sale pre-dated this offence by 4 months.

Range of Sentence [ 42 ] The Crown took the position that Ms. Yu should be granted credit for three days of time served (reflecting enhanced credit for the two times she was taken into custody and released the same day) and be placed on probation.

In my view, and as expressed to the Crown during the proceedings, such a sentence would be contrary to the public interest and would bring the administration of justice into disrepute. [ 43 ] After consideration of further authorities, the Crown submitted that a sentence of 14 to 30 days incarceration was within the range of sentence imposed for similar offenders and similar offences. [ 44 ] There are few authorities dealing with an offence of failing to comply with an order or common law criminal contempt arising from a civil property dispute.

Most of the authorities arise from a failure to comply with a Family Court order or from failure to comply with orders relating to the restriction of protest activities. [ 45 ] In R. v. Dhillon 2015 BCSC 1298 , Justice H. Holmes (now A.C.J.) imposed a sentence of 30 days incarceration after a conviction for common law criminal contempt (as opposed to a conviction under s. 127 (1) of the Criminal Code ), for failing to comply with a Supreme Court order prohibiting the publishing of defamatory blog posts relating to a trustee in bankruptcy. [ 46 ] The matter proceeded to trial.

The offender was not remorseful or apologetic and continued to assert a right to freedom of expression. He continued to demonstrate defiance of the order by publishing further materials. The offender also conducted himself in a defiant manner, similar to that of Ms. Yu, during the proceedings.

[47] The court addressed the approach to be taken for sentencing for common law criminal contempt and applied the principles ofsentence set out in the Criminal Code. At paragraph 12 she said: [12] For offences of criminal contempt, deterrence is usually the primary sentencing objective. This is because the purpose ofcontempt proceedings is to protect the rule of law, the organizing principle which distinguishes civilized society from anarchy. In itsstruggle to preserve the rule of law and to ensure its own continued effectiveness, the court’s only device is its power to punish forcontempt: R. v.

Bridges (No. 2) (1989), (BC SC), 48 C.C.C. (3d) 545 at 548-549 (B.C.S.C.), aff’d (1990), (BC CA), 62 C.C.C. (3d) 455 (B.C.C.A.). [48] The Crown submitted that a sentence of 60 to 90 days incarceration was appropriate and the court found that: [19] Jail sentences within the range the Crown suggests have been found to be appropriate even for first offenders, particularly wherethe contemnor does not “resile from the unlawful conduct”: see Texada Land Corp. at para. 13. [49] The court addressed the importance of the rule of law as follows: [34] We will have no rule of law if individuals are permitted to act as though their own concept of justice should immediately prevail.

Wood J. (then of this Court) explained this eloquently to the offenders in Bridges (No. 2), at pp. 547-548: It is the rule of law which distinguishes civilized society from anarchy. Everything which we have today, and which we cherish in thisfree and democratic state, we have because of the rule of law. Freedom of religion and freedom of expression exist today because of therule of law.

Your right to hold the beliefs you do, to espouse those beliefs with the fervour which you do, and to attempt to persuadeothers to your point of view, exists only because of the rule of law. … The rule of law exists in this society only because the overwhelming majority of citizens, irrespective of their different views on religion,morality or science, agree to be bound by the law. That agreement, which cannot be found recorded in any conventional sense, hassurvived the deepest and most profound conflicts of religion, morality and science.

In that sense it might be thought that its strength isoverwhelming and its future secure. But that is not the case at all, for the continued existence of that agreement is threatened by its owninherent fragility. … The fragility of the rule of law is such that none of us who seek to enjoy its benefits can be permitted the occasional anarchical holidayfrom its mandate, no matter how compelling or how persuasive may be the cause that such anarchy seeks to advance. Furthermore it isonly through the rule of law that any meaningful, lasting or effective change can be wrought in the law.

Thus it is that by seeking tochange the law by deliberately disobeying it you threaten the continued existence of the very instrument, indeed the only instrumentthrough which you may eventually achieve the end you seek. Such conduct is not only illegal, it is completely self-defeating.

The rule of law is the very foundation for all of the freedoms we enjoy in our society, including those you invoke when you assert yourright of freedom of expression. [50] The court found that a conditional sentence or probationary term would not be appropriate as such dispositions would not havethe necessary deterrent effect and because the offender was unlikely to comply with any terms. A more lenient sentence than thoseimposed for large scale and coordinated defiance of injunctions by those engaged in logging protests was found to be fit. [51] R. v.

Dhillon 2021 BCCA 271 is the decision on appeal from the sentence imposed. The court did not find that the trial judgeerred or that the 30 day sentence was demonstrably unfit. At para 33 the court adopted the following: …The “extent of the wilful and deliberate defiance” of a court order demonstrated by an offender properly informs the sentencing forcriminal contempt: Regina (City) v. Cunningham, [1994] S.J.

No. 412 (C.A.) at para. 18 (emphasis added). [52] Due to the considerable lapse in time from the imposition of the sentence to the appeal, the court did not require the offender toreturn to custody to complete the jail term. [53] I have also considered the decision of Trans Mountain Pipeline ULC v. Mivasair 2019 BCCA 156 which was an appeal from theimposition of 14 day sentences of incarceration imposed for violating restraining orders by obstructing access to worksites. The trialjudge was found not to have erred and the sentences were not found to be demonstrably unfit.

At paras 51 to 60 the court addressed theissues of parity and the application of the principles of sentence relating to criminal contempt and incorporated the provisions of theCriminal Code as applicable. Conclusion [54] I am mindful that community based dispositions can meet the need for deterrence and denunciation. However, as noted above,such a disposition is not appropriate where it is clear the offender will not comply with or benefit from any terms.

I agree with Dhillonand, taking into account that this offender has failed to resile from her unlawful conduct, I find that a community based disposition wouldnot serve the very strong need for denunciation and general deterrence. [55] Ms. Yu now has a criminal conviction for a serious offence. I am not able to find that being convicted in this matter has servedto bring home to her the seriousness of her conduct and her responsibility for it. I find Ms.

Yu’s ongoing defiance has been so wilful anddeliberate that a significant period of incarceration is necessary to serve the need for denunciation and both general and specificdeterrence.

[ 56 ] Having considered all of the circumstances of this offence and this offender, and having carefully considered the principle of restraint when dealing with a first time offender, I nevertheless find that a sentence of 30 days incarceration is appropriate. There will also be a one year period of probation to follow with the only term being that she is prohibited from being within 100 meters of her former strata unit. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia