R. v. J.L. Date:, 2013 BCPC 347

Citation: R. v. J.L. Date: 20131212 2013 BCPC 0347 File No: 7675-1, 7675-2-A Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.L. BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada Youth Matter – Restriction on Access Pursuant to s. 110 and s. 118 Youth Criminal Justice Act ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Crown: C.D. Hagen Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C. Date of Judgment: December 12, 2013 Introduction [ 1 ] THE COURT (orally): The young offender, J.L., who is 16 years old without any prior criminal record, is before the court for sentencing.

He has pleaded guilty to two offences: namely, the indictable offence of sexual assault causing bodily harm to K.M. (the "Complainant") on or about April 3, 2013, contrary to s. 272 of the Criminal Code , and on or about April 5, 2013, breaching a condition of an undertaking entered before a peace officer or an officer in charge for his release (the "Undertaking"). J.L. failed to comply with the condition not to consume drugs except in accordance with a medical prescription, contrary to s. 145(5.1) of the Criminal Code . [ 2 ] J.L. has remained in custody in a youth detention facility since April 5, 2013.

He has not sought his release. [ 3 ] He entered his plea of guilty to the sexual assault causing bodily harm charge on June 20, 2013, and entered a guilty plea to the charge of breaching the Undertaking at the commencement of the sentencing proceedings on November 27, 2013. [ 4 ] Those sentencing proceedings continued on November 28, 2013, and on December 6, 2013.

As of today, December 12, 2013, J.L. has been in pre-sentence custody for a total of 252 days. [ 5 ] At issue is what is an appropriate sentence for J.L., having regard for the specific purposes and principles relating to the sentencing of young persons contained in the Youth Criminal Justice Act , S.C. 2002, c. 1 (the "YCJA"). [ 6 ] Crown and defence counsel agree that a custodial sentence in open custody is necessary and appropriate for the sexual assault causing bodily harm offence. It is also agreed that given the circumstances, this offence is a violent offence as defined in s. 2 of the YCJA .

They also agree that a probation order coupled with an intensive support and supervision program is necessary and appropriate for the breach of undertaking offence. [ 7 ] Their respective positions differ on the question of the duration of both the custodial sentence for the sexual assault offence and for the probation order for the breach of undertaking. They further differ on the amount of any credit and the means of allocating any credit for pre-sentence custody.

They agree that secure custody time to be served should be on an open custody basis rather than on a closed custody basis to permit better access to programs by J.L. [ 8 ] Crown and defence counsel do not materially differ on the terms of probation or an intensive support and supervision order. Defence counsel does not oppose the DNA order sought by Crown pursuant to s. 487.051 of the Criminal Code nor the two-year weapons prohibition sought by Crown pursuant to s. 51(1) (

a) of the YCJA . [ 9 ] Crown and defence counsel jointly submit that the court should not lift the publication ban pursuant to s. 75 of the YCJA . The Offences Sexual Assault Causing Bodily Harm [ 10 ] During the sentencing proceedings, Crown outlined the circumstances relating to the sexual assault causing bodily harm offence and showed two graphic and disturbing videos of the events surrounding and including the offence. They were admitted into evidence as exhibits in the sentencing proceedings.

One of the videos was taken by a civilian male witness who had heard what he believed to be a domestic dispute in an underground parking lot. The shouting was coming from the direction that he had previously observed an intoxicated female stumble towards a few minutes earlier. Instead of calling the police, the civilian witness went home to obtain his video camera and then 15 minutes later proceeded to the location from which he had heard the disturbance.

There he observed a young male individual, later identified as J.L., with his pants down lying on top of a female masturbating himself, and then forcing open the legs of and having non-consensual sexual intercourse with her. That female was later identified as the Complainant. [ 11 ] Although the audio portion of this video is unclear, it is evident that the Complainant is saying "no" to J.L. and is complaining that he is hurting her. The Complainant is making some ineffectual physical efforts to resist the attack.

She appears to be highly emotional and upset and is struggling to maintain physical coordination and consciousness. [ 12 ] The civilian witness apparently continued to video-record the scene for over three minutes. He then apparently concluded that the situation required the attendance of the police. Without intervening to assist the Complainant in any fashion, citing his own safety concerns, the civilian witness apparently then left the scene and sought to find a telephone to summons the police. He encountered another couple and asked them to call the police.

The police arrived shortly thereafter. [ 13 ] The civilian witness directed the police to the scene of the incident where one officer was able to find the Complainant, and thereafter, the civilian witness directed the police to the fleeing young male later identified as J.L. [ 14 ] The second video presented by Crown was a surveillance video of the underground parking lot where the events occurred. It

has poor definition and an uneven recording pattern, apparently stemming from the fact that the camera was motion-activated and recorded, essentially, a series of still photographs. But it does depict other aspects of this offence that took place over a period of approximately one hour. In it, two figures, admitted to be J.L. and the Complainant, enter into the underground parking garage with J.L. leading the Complainant. Her physical movements are consistent with a high level of intoxication.

At various times throughout the video, the Complainant attempts to leave the scene but is pursued and physically escorted or pulled back by J.L. At various times, J.L. has the Complainant pinned against the wall or has her on the ground and is lying on top of her or is standing over her while she is in the supine position. [ 15 ] There is no doubt that he is pulling at her clothes. He removes her pants and is forcing sexual activity on her, including what appears to be more than one incident of sexual intercourse.

On at least two occasions, J.L. appears to depart the scene but returns and viciously kicks the Complainant in her head and face area while she is lying on the ground totally defenceless. After one of the kicks, the Complainant appears to crumple prone to the ground and appears immobilized and possibly rendered unconscious. [ 16 ] J.L. can be seen striking the Complainant on several occasions around the face and head and relentlessly committing other multiple forms of physical assault on her, including what appears to be whipping her and also striking her with unidentifiable objects.

In another portion, J.L. appears to be rifling through the Complainant's purse and throwing items around. [ 17 ] The depictions on the videos show continuing and highly vicious, brutal, unprovoked, physical and sexual attacks made by J.L. on a defenceless victim. [ 18 ] The observations of the attending police officer, related by Crown, indicate that he found the Complainant in the underground parking lot, very intoxicated with observable injuries to her head and face.

She was yelling hysterically, stating that she had been raped and kicked by an assailant whom she described and indicated had just fled from the scene. [ 19 ] The emergency response team was called to take the Complainant to the hospital for examination and treatment. Subsequently, a statement was taken from the Complainant, and her injuries were photographed. Those photographs were filed as an exhibit. [ 20 ] The statement obtained from the Complainant by the police indicates that she did not know her assailant, later identified as J.L., whom she encountered entering into the underground parking lot.

She was highly intoxicated, having consumed two bottles of sherry, then sharing a third bottle of sherry. She did not consent to any sexual activity with J.L. [ 21 ] In response to J.L.'s question to her, the Complainant said that she did not have any beer or cigarettes. At that point, J.L. became violent, mean, and angry. Notwithstanding several attempts to escape, J.L. grabbed her, punched, kicked, and choked her, ultimately sexually assaulting her by penetrating her vaginally with his penis. She feared for her life.

During the attack, the assailant called her highly offensive and derogatory names. [ 22 ] Based on her statement and her medical records, the attack upon her resulted in prominent contusions and a large hematoma to her left and right cheekbones. Abrasions were noted across her throat (approximately five inches), and she had some ribcage pain. Also observed were gravel rash on her upper buttocks and some bruises and scratches on her arms and cuts on her fingers.

Fortunately, no fractures of her facial bones were detected. [ 23 ] The Complainant specifically complained of lumps on the back of her head, sore ribs, blurry vision from bruised eyes, one of which was bloodied in the whites of her eye. The photographs of the Complainant substantiate many of these injuries.

The Complainant appears to be in her mid-thirties to mid-forties in age. [ 24 ] In her victim impact statement, the Complainant confirms the emotional trauma that she has sustained from these attacks, the continuing negative impact on her personal life and her relationships, and the lengthy recovery time for many of the physical injuries that she sustained. [ 25 ] Based upon the statements obtained by the police from friends of J.L., they and J.L. had been consuming a great deal of alcohol and marihuana for several hours prior to the offence.

The group became separated, and it was presumed that J.L. had headed home. [ 26 ] The arresting police officer noted that J.L. appeared to be intoxicated and his speech was mildly slurred. He staggered when he walked. J.L. admitted to consuming alcohol. J.L. told the arresting officer about the offence as follows: "I didn't even know her name. She just wanted to have sex with me, so I did it." [ 27 ] Following his initial arrest at the scene, J.L. was released on the Undertaking.

He was subsequently re-arrested as noted below. [ 28 ] On or about April 5, 2013, J.L. appeared in court facing the sexual assault causing bodily harm charge as well as unlawful confinement of the Complainant, contrary to s. 279(2) of the Criminal Code , and a charge contrary to s. 246 (

a) of overcoming resistance to the indictable offence of sexual assault by attempting to choke or strangle the Complainant. [ 29 ] Crown was proceeding by way of indictment. J.L. was represented by duty counsel. A bail assessment report was ordered. The matter was put over to May 9, 2013, to deal with judicial interim release. During this interval, defence counsel was retained on behalf of J.L. [ 30 ] From April 5, 2013, until August 29, 2013, Crown was considering dealing with J.L. as an adult and seeking an adult sentence. Crown formally withdrew its notice in that regard on August 29, 2013.

That decision is consistent with the recommendations contained in some of the reports noted below. [ 31 ] The bail assessment report dated April 26, 2013, prepared by Jeffrey Fuhr, PhD, a registered psychologist with Youth Forensic Psychiatric Services (the "Bail Assessment Report"), was made available to the court for the May 9, 2013, appearance of J.L. The Bail Assessment Report was generally positive and made the recommendation that J.L. should be returned to his family home under strict conditions.

Notwithstanding that recommendation, J.L. did not and has not sought his release and remains in custody with the Youth

Custody Services. [ 32 ] It is common ground that between May 9, 2013, and June 20, 2013, being the date that J.L. entered a plea of guilty to Count 1, being the offence of sexual assault causing bodily harm, the exchange of disclosure and lengthy discussions between Crown counsel and defence counsel took place. It is also common ground that a number of reports and assessments were ordered by the court on June 20, 2013.

They have been completed and are now before the court as part of the sentencing proceedings. [ 33 ] Crown has indicated that it intends to enter stays of proceedings on the remaining counts in the information at the conclusion of the sentencing period. In fact, at the outset of today's proceedings, those stays were entered. Breach of Undertaking [ 34 ] The police attended at J.L.'s parents' residence on April 5, 2013, in order to arrest him on the sexual assault causing bodily harm and related charges. J.L.'s mother indicated that he was not at home but, rather, at a friend's house.

A call placed by J.L.'s mother to the friend's residence determined that J.L. was not there. A police search of the neighbourhood located J.L., who was arrested and found to have a marihuana smoking implement known as a "bong" in his possession. The police detected the smell of marihuana about J.L. and noted his bloodshot eyes, all being indicia of recent marihuana use, and in contravention of one of the prohibitions contained in the Undertaking. [ 35 ] J.L. and his mother were cooperative throughout this matter and J.L.'s arrest. [ 36 ] As noted above, J.L. admits the offence of the breach of the Undertaking.

Background of the Offender [ 37 ] A number of reports in addition to the Bail Assessment Report noted above are before the court. These provide significant information about the background of and insight into J.L. Those reports are: (

a) a psychiatric report from Dr. Scott Prior, a psychiatrist with Youth Forensic Psychiatric Services, dated June 27, 2013; (

b) a psychological report from Dr. Jeffrey Fuhr, the registered psychologist described above, dated July 16, 2013; (

c) a forensic psychosocial assessment report from Kate Dale, a psychiatric social worker, dated August 19, 2013; (

d) a pre-sentence report from Youth Probation Officer Kerry Smith dated August 27, 2013; (

e) a progress report from Youth Probation Officer Kerry Smith dated November 7, 2013. [ 38 ] The following profile emerges about 16-year-old J.L. [ 39 ] He has resided with his parents and younger sister in a stable middle-class home. Notwithstanding J.L.'s own initiated growing alienation with his family predating the offence, his parents and his grandparents have been and continue to be supportive of him. That was apparent from their attendance throughout most of the sentencing proceedings.

The family has been shocked and devastated by the charges against J.L. [ 40 ] There is no history of violence within the home. However, there is a history of J.L. getting into physical altercations with peers at school, resulting in suspensions. His aggressive behaviour started as early as grade 2. He was subject to incidents of teasing and bullying at school intermittently from grade 3 onward, to which he reacted with anger and aggression.

A pattern of physical aggressiveness towards staff and pupils and overt opposition to authority and misconduct was observed from grade 3 onward and continued in various forms thereafter. He was subject to appropriate sanctions at school as a result of his responses to the bullying and his own problematic behaviour. [ 41 ] There has been a general decline in J.L.'s academic performance and positive engagement with school to the point that a pattern of significant absenteeism and failure to complete courses was evident by grade 9.

He entered into an alternative school by grade 10. [ 42 ] He has a history of alcohol and drug use and abuse which began in his early teens. The full extent of that use and abuse was not detected by his parents. By the time of his offences, J.L. engaged in daily marihuana use. He slipped into a pattern that abandoned many pro-social activities such that he was hanging out with a negative peer group. They engaged in playing videogames and smoking marihuana on a daily basis.

It is also apparent that J.L. was increasingly drinking alcohol to the point of intoxication and was combining that with prescription painkillers and his heavy marihuana use prior to the offences. [ 43 ] Dr. Prior's report of June 27, 2013, states that the escalating serious use of substances likely contributed to this offence. [ 44 ] Dr. Fuhr's July 16, 2013, report provides information on the results of various tests administered to J.L. J.L.'s cognitive functioning results place him at the cusp of borderline low-average.

He demonstrated significant attention memory challenges, low- average verbal comprehension skills possibly negatively impacted by heavy marihuana use. There is no clear indication of attention deficit disorder. [ 45 ] Elevated scores were observed on the State-Trait Anger Expression Inventory (STAXI) II, which determined that J.L. was likely to express negative anger and emotion in a poorly controlled manner but, apparently, generally able to manage his anger expression and control.

He was deemed at risk all of the time but was open to angry, hostile expression. [ 46 ] The Millon® Adolescent Clinical Inventory (MACI®) test suggests J.L. is "not much motivated to restrain his impulses and modify his hostile character. Rather, as an excitable, interpersonally disruptive boy, he will experience uncontrollable rages and quite thoughtless abuse and contempt of others who he feels have denied him." (see page 13 of Dr. Fuhr's report).

[ 47 ] Dr. Prior's report of June 27, 2013, specifically deals with an assessment for an opinion regarding raising J.L. to adult court for sentencing pursuant to s. 72(1) (

a) of the YCJA based on the factors established by that section. Over the course of two separate interviews, J.L. became more willing to talk to Dr. Prior about the circumstances surrounding the offence and what transpired. What started out as a vague recollection became more detailed. Of significance is his admission of anger when the Complainant rejected his advances for sex. Notwithstanding greater sharing of information, there was a continued reluctance on J.L.'s part to discuss more details of the offence with Dr. Prior. [ 48 ] In giving his opinion, Dr.

Prior stated that there was insufficient evidence to rebut the presumption of decreased moral blameworthiness which is required for there to be an adult sentence. He notes the following about J.L.: (

a) his lack of premeditation, planning, or an enactment of any long-term fantasy in committing the offence; (

b) some difficulty of J.L. expressing remorse and empathy for his victim characterized as "problematic empathy" being short of dismissive or indifference to his victim but described as a "demonstrated nascent capacity for empathy"; (

c) some prospect for rehabilitation in terms of treatable risk factors and J.L.'s acknowledgement of problematic substance use and acceptance of the need for treatment for substance abuse and for his violence and anger which appears to stem, in part, from his significant anxiety issues. These are all identified as treatable risk factors. [ 49 ] Based on a risk assessment conducted on August 2, 2013, Dr. Prior, Social Worker Dale, and Dr.

Fuhr reached a general consensus that J.L.'s risk for violence in the short term and his long-term risk to reoffend is considered "moderate-high" without treatment for his drug use, his anxiety, and his problematic capacity for empathy. [ 50 ] Dr. Fuhr's report of July 16, 2013, states the following opinion at page 15: [J.L.] has no ‘protective factors’ in place, such as: school interest, productive leisure, pro-social bonds. His level of empathy is nonexistent, although there may be a guarded sense of remorse, i.e. without the expression of affect.

Again, if [J.L.] does not engage in violent-offender treatment and anger management, there is a strong risk of and acting violence toward another again. [ 51 ] Youth Probation Officer Kerry Smith's pre-sentence report of August 27, 2013, confirmed that J.L. has been involved in the drug and alcohol counselling in the Youth Custody Centre. Mr. Smith notes that notwithstanding this, J.L.'s significant drug addiction caused him to desperately try to find stimulants within the custody centre. He was caught trying to inhale crushed-up tablets of Tylenol and ibuprofen in his room on July 8, 2013. [ 52 ] Mr.

Smith further notes that the nature of the sexual offence charges against J.L. have resulted in him being goaded into fights with other youth while in the custody centre during the months of April and May of 2013. [ 53 ] Marked progress in avoiding conflict and resisting goading by other youth within the detention centre has been achieved by J.L. in recent months, up to August of 2013. He has productively been involved voluntarily in a number of other programs, including aboriginal cultural programming, chaplaincy, and school programs.

He has demonstrated an ability to complete schoolwork and has put forth a better effort. [ 54 ] By June 2013, J.L. had achieved a behaviour rating by the youth detention staff of three out of a possible four and favourable comments, contained within the pre-sentence report. [ 55 ] In the August 27, 2013 pre-sentence report, Youth Probation Officer Smith stated that he has attempted to discuss the offence circumstances and J.L.'s attitude towards the offence. J.L. stated that he could not remember anything of the offence against the Complainant.

This, of course, is inconsistent with his recollection of a significant amount of information about the offence when being interviewed by Dr. Prior. Mr. Smith expressed the view that J.L., while expressing regret about the incident, did not fully appreciate the "damage inflicted physically and emotionally and mentally on the victim." [ 56 ] Mr. Smith's August 27, 2013, pre-sentence report opines reluctance about a community-based supervision program being appropriate at that juncture and that 24-hour-a-day monitoring was necessary. Treatment for substance abuse was viewed as being fundamentally important. Mr.

Smith further notes that Youth Forensic Psychiatric Services consistently recommend a two-year period for treatment and therapy for youth sex offenders. That treatment is apparently available both within the custody centre or in the community. [ 57 ] Youth Probation Officer Smith states as follows on page 10 of his August 27, 2013 pre-sentence report: This writer believes that the resources and therapeutic nature of the youth justice system are capable of providing the best opportunity for rehabilitation long term, but only if the length of time is sufficient to complete the work required.

An integrated team approach to managing young offenders is often the best way to gauge progress and reduce risk to reoffend. This team would include, but is not limited to, Youth Forensic Psychiatric Services staff, probation officers in the community and in custody, drug and alcohol counsellors, family members, and school programming staff. [ 58 ] Based on his view that J.L.'s "true feelings of motivation" around the serious sexual assault are "still unknown," Mr.

Smith further opines on page 10 that "there are no reasonable alternatives to custody that ensure a meaningful consequence and promote the long-term protection of the public." He suggests in-custody counselling and therapy leading to a possible referral to a full-time

attendance program designated specifically for sex offenders. In particular, he suggests the STRIDE program in Prince George. [ 59 ] Youth Probation Officer Smith provides a further Progress Report about J.L. dated November 27, 2013, which details the continued progress made by J.L. while remaining in the Youth Detention Centre. His behaviour rating has improved to a four out of a possible four. He has continued his participation in the programs noted in the August 27, 2013 pre-sentence report and added additional programs by participating in an anxiety group and trauma therapy group.

As is the normal course, J.L. has not attended programming related to sex offender treatment while in remand custody. Mr. Smith notes that to address the underlying cause of the sexual offence, he is of the view that it will require "extensive therapeutic involvement and oversight." [ 60 ] I understand from submissions received from counsel that Youth Probation Officer Smith adheres to the views expressed in his pre-sentence report of August 27, 2013, and is recommending continuation of custody and eventual admission into the STRIDE program.

Youth Criminal Justice Act Provisions [ 61 ] The broad principles that govern judges in the sentencing of young persons are found in s. 3 of the YCJA : 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour . . . [ 62 ] Section 38(1) of the YCJA more fully describes the applicable sentencing purposes that apply to young persons. Thereafter, s. 38(2) (e) (

i) requires a sentencing judge to impose the least restrictive sentence that is appropriate: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been 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 offence committed 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 that offence; (

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; 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.

(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 and principles set out in this section. [ 63 ] Pursuant to Section 39(9) of the YCJA , the court must state the reasons why a noncustodial sentence is not adequate to achieve the purpose set out in s. 38(1) : 39. . . .

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1) , including, if applicable, the reasons why the case is an exceptional case under paragraph (1) (d) . [ 64 ] Section 39(1) (

a) to (

d) of the YCJA sets out what is sometimes referred to as the "gateways to custody" provisions. A sentencing judge may not commit a young person to custody unless the young person has been convicted of certain specified offences. Subsection 1 (

a) applies in the present case: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; ...

(2) If any of paragraphs (1) (

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

d) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[ 65 ]

Section 42 specifies the available sentence for a young person. Relevant to this case are s. 42(2) (k) , (l) , (m) , (n) , and (s) : 42.

(1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under

section 41, any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court.

(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 . . . (

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; (

l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director; (

m) subject to subsection (3) (agreement of provincial director) and

section 54, order the young person to attend a non-residential program approved by the provincial director, at the times and on the terms that the court may fix, for a maximum of two hundred and forty hours, over a period not exceeding six months; (

n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; ... (

s) impose on the young person any other reasonable and ancillary conditions that the court considers advisable and in the best interests of the young person and the public. [ 66 ] The term custodial portion is defined in s. 2: "custodial portion", with respect to a youth sentence imposed on a young person under paragraph 42(2) (n) , (o) , (

q) or (r) , means the period of time, or the portion of the young person's youth sentence, that must be served in custody before he or she begins to serve the remainder under supervision in the community subject to conditions under paragraph 42(2)(

n) or under conditional supervision under paragraph 42(2) (o) , (

q) or (r) . [ 67 ] Importantly, the date that a sentence comes into effect is found in s. 42(12):

(12) A youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justice court specifies. [ 68 ] Consecutive youth sentences are dealt with in s. 42(13):

(13) Subject to subsections (15) and (16), a youth justice court that sentences a young person may direct that a sentence imposed on the young person under paragraph (2) (n) , (o) , (

q) or (

r) be served consecutively if the young person (

a) is sentenced while under sentence for an offence under any of those paragraphs; or (

b) is found guilty of more than one offence under any of those paragraphs. [ 69 ] The duration of a youth sentence for a single offence and for different offences is dealt with in ss. 42(14) and (15):

(14) No youth sentence, other than an order made under paragraph (2) (j) , (n) , (o) , (

q) or (r) , shall continue in force for more than two years. If the youth sentence comprises more than one sanction imposed at the same time in respect of the same offence, the combined duration of the sanctions shall not exceed two years, unless the sentence includes a sanction under paragraph (2) (j) , (n) , (o) , (

q) or (

r) that exceeds two years.

(15) Subject to subsection (16), if more than one youth sentence is imposed under this

section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder.

Position of Crown on Sentencing [ 70 ] Crown submits that the facts of the sexual assault causing bodily harm offence are extremely serious and aggravated. Crown notes that the maximum sentence is not to exceed two years from the date of sentence pursuant to s. 42(2) (

n) of the YCJA . [ 71 ] Crown submits that time spent in pre-trial custody is but one factor to be considered when imposing an appropriate youth sentence, and a maximum sentence permitted under the YCJA after pre-trial custody does not offend s. 42(14) of the YCJA. [ 72 ] Crown says that with respect to any credit for pre-sentence custody, that it should only be counted from the date of the guilty plea being entered on the sexual assault causing bodily harm charge on June 20, 2013.

Crown argues that one-for-one credit is not required. [ 73 ] Crown seeks the maximum sentence of two years to be imposed in this matter and says that it adequately addresses the principles of sentencing, including protection of the public, denunciation, specific deterrence, and rehabilitation. [ 74 ] Crown submits that what best satisfies the principles of sentencing for J.L. in these circumstances is one that allows him to receive treatment in custody and then attend the 10-month sexual offender residential program in Prince George (being the STRIDE program referred to in Youth Probation Officer Smith's report) from September of 2014 until June of 2015.

In Crown's submission, if J.L. remains in custody and then attends the STRIDE program, this will ensure that this youth receives the treatment and rehabilitation he needs so that he can succeed in the community upon release. [ 75 ] Crown submits that there are two ways to meet the sentencing goals of the YCJA and the sentence sought by the Crown. The first is to sentence J.L. to a further two-year custody and supervision order that would result in a further 16 months in custody followed by eight months' supervision in the community.

If his progress in custody supports a review, he can be brought back before the court and his order can be changed to allow him to attend the STRIDE program in Prince George. [ 76 ] The second way is to sentence J.L. to a further 18 months in custody, 12 months of which would be served in custody and six months of which would be supervised in the community, followed by six months' probation to allow reintegration into the community. Crown says that this position takes into account six months of pre-sentence custody served by J.L.

Under this option, the release date for J.L. would be in December 2014, but the YCJA allows for the review of the sentence under s. 94 .

If J.L.'s progress while in custody is positive, the order can be changed to allow him to attend the STRIDE program in Prince George. [ 77 ] The Crown's sentencing position places particular emphasis on holding J.L. accountable for his offence through the imposition of sanctions that have meaningful consequences for him and promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 78 ] Examining the principles set out in s. 38(2) of the YCJA , Crown submits as follows, with specific reference to the subsections of that section. [ 79 ] Having regard to subsection (a) , Crown says an adult sentence for a similar offence would be a lengthy period of incarceration in the range of three to six years.

Crown refers to and relies upon the following cases as being supportive of that range: R. v. Chinneck , 2005 BCCA 346 ; R. v. Wren , 2004 BCCA 167 ; R. v. Latreille , 2009 BCSC 1892 . Parenthetically, I agree with Crown's submission with respect to an adult sentence for a similar offence is in that range. [ 80 ] Having regard to subsection (b) , Crown says that there are few like offences in this region committed in similar circumstances.

The authorities relied upon by Crown contain YCJA sentences for sexual assault indicating that custody is an appropriate sentence for J.L. [ 81 ] Having regard to subsection (c) , Crown says this is an extremely serious offence with a high degree of responsibility of this young person. [ 82 ] Having regard to subsection (d) , Crown says that there are no other available sanctions other than custody and supervision that are reasonable in the circumstances. [ 83 ] Having regard to subsections (

e) to (f) , Crown says that custody with the requisite community supervision is most likely to rehabilitate J.L., reintegrate him into society, promote a sense of responsibility and an acknowledgment of the harm done to the victim and the community, and will address the objective to denounce his unlawful conduct and to deter J.L. from committing further offences. [ 84 ] Furthermore, about the provisions contained within the subsections of s. 38(3) of the YCJA , Crown says, having regard to subsection (a) , the accused is the main perpetrator who acted on his own volition.

He is not a party to the offence; hence his degree of participation rests solely with him. Having regard to subsection (b) , the harm to the victim was intentional. Having regard to subsection (c) , no reparations have been made by J.L. to the victim or to the community. Having regard to subsection (d) , J.L has spent eight months of pre-sentence custody. Crown points to the following aggravating factors: (

a) the unprovoked and violent nature of the assault upon a complete stranger in a public place; (

b) the sexual assault involved vaginal intercourse; (

c) the brutal violence used by J.L. during the sexual assault by kicking, punching, and choking the victim resulting in the injuries described above; (

d) the long duration of the physical and sexual assault and the fear for her life caused to the victim;

(

e) the attempts by the victim to leave the scene and the steps taken by J.L. to prevent her from doing so and to confine her in order to continue his assaults upon her; (

f) the victim was a vulnerable older women heavily intoxicated and thereby less able to defend and protect herself; (

g) the accused rifled through the victim's purse during the course of the assault; (

h) J.L. is at moderate to high risk to reoffend. [ 85 ] Crown points to the following mitigating factors: (

a) J.L. has no prior criminal record; (

b) J.L. entered a plea of guilty at an early opportunity, thereby avoiding a trial and the necessity for the Complainant to testify; (

c) J.L. appears to be doing well with his programming while in custody. [ 86 ] In reply and in opposition to the position advanced by defence that the sentence should be crafted to permit J.L., after serving the custodial part of his sentence, to be able to transition in order to spend time with his parents prior to entering the STRIDE program, Crown says that the sentence can be reviewed.

That review is available under s. 94 of the YCJA if J.L. makes satisfactory progress while in custody. [ 87 ] I understand that Crown is suggesting a sentence of a one-year period of probation for the breach offence to be served consecutive to the sexual assault causing bodily harm sentence.

Position of the Accused on Sentencing [ 88 ] In his submissions, defence counsel agrees with Crown that the imposition of a noncustodial sentence would be inconsistent with the purpose and principles set out in s. 38 of the YCJA given the aggravating circumstances of the offence and the need for closely supervised therapy and rehabilitation of J.L., as confirmed by the various reports.

Therefore, defence agrees that a custodial sentence is appropriate. [ 89 ] Defence does take issue with the length of the custodial sentence being sought by Crown which, it says, overemphasizes the aspect of "accountability" mentioned in s. 3(1) (a) (

i) of the YCJA and does not adequately address the aspect of "reintegration" referred to in subsection (a) (ii) and it denies J.L.'s family the opportunity to be engaged as part of the rehabilitation team that Youth Probation Officer Kerry Smith refers to in page 10 of his August 27, 2013 pre-sentence report quoted from above. [ 90 ] Defence further submits that, in the normal course, J.L. should receive credit for his pre-sentence time without any enhanced credit, but on a one-for-one basis, counting from the date that he entered into custody on April 5, 2013.

Defence further says that this case is not one of the "exceptional cases" that warrants less than one-for-one credit, and therefore, Crown's position of less than one-for- one credit is not what is normally given. [ 91 ] Defence suggests that the appropriate range of sentences in the sexual assault causing bodily harm offence is between 12 to 18 months of custody and supervision, followed by two consecutive six-month intensive support and supervision orders, one of which would be allocated to the breach offence. [ 92 ] If the sentence on the sexual assault causing bodily harm were to be 18 months and pre-sentence credit was given on a one-for- one basis, then after the allocation of the custody and supervision order on a two-thirds custody and one-third community supervision basis in accordance with s. 42(2) (

n) of the YCJA , defence then says that J.L. would be able to be released in or around June of 2014 to live with his parents, prior to departing in September of 2014 to the 10-month STRIDE program in Prince George. Such arrangement would assist J.L.'s reintegration with his family and allow them to fulfil their role as part of the rehabilitation team. It will also provide him with a beneficial break from a custodial setting.

J.L.'s parents are considering taking him during this period for family camping in a wilderness setting, but subject always to permission and directions of the youth probation officer. [ 93 ] Defence also views J.L.'s attendance thereafter at the 10-month STRIDE sexual offender program as essential both for J.L.'s rehabilitation and his reintegration into society. [ 94 ] Rather than relying upon a review of the sentence process, which Crown says could occur if satisfactory rehabilitation is achieved in custody, defence says it is important that J.L. have established milestones set by the court in order to guide his rehabilitation. [ 95 ] Defence submits that there are some further mitigation factors and circumstances that should be considered.

They are as follows: (

a) J.L is not entrenched in a criminal lifestyle, and this offence can be regarded as a very serious and unfortunate event but as an isolated incident that lacked any planning; (

b) J.L.'s choice to remain in custody and to be able to receive programming foundational for his rehabilitation makes him "ready to go to treatment," which I understand to mean both for his substance abuse problems and also as a sex offender; (

c) J.L. has taken advantage and succeeded at the programs made available to him while in remand custody, which is confirmed in the November 27, 2013, progress report of Youth Probation Officer Smith; (

d) J.L.'s acknowledgement of the requirement for and willingness to receive treatment as confirmed by Dr. Prior's report. Discussion

Basis for a custodial sentence for sexual assault causing bodily harm under s. 39(1) [ 96 ] Section 39(1) (

a) of the YCJA allows for a custodial sentence in this case for the sexual assault causing bodily harm. As required by that section, I have sufficient before me to hold, without any reservation, that J.L. has committed a violent offence. This is a serious and brutal offence which caused significant but not life-threatening injuries to the defenceless Complainant. This violent offence is complete with highly aggravating circumstances. [ 97 ] I accept the aggravating circumstances outlined by Crown and to which I have specifically referred to above in furtherance of the violent nature of this offence.

I also accept the mitigating factors identified by the Crown and defence. [ 98 ] Crown and defence both agree that the requirements of s. 39(1) (

a) apply to this case and that a custodial sentence is appropriate and, by inference, a noncustodial sentence is not adequate. [ 99 ] Accordingly, I am of the view a custodial sentence is appropriate and necessary.

Reasons pursuant to s. 39(9) of the YCJA why a noncustodial sentence is not adequate to achieve the purpose set out is s. 38(1) [ 100 ] Under s. 39(9) of the YCJA I must also consider and state why a noncustodial sentence is not adequate to achieve the purpose set out in s. 38(1) of the YCJA. [ 101 ] Section 38(1) of the YCJA speaks in terms of accountability through just sanctions which provide meaningful consequences. It also speaks of promoting rehabilitation and reintegration of the young person into society. [ 102 ] Madam Justice Garson in R. v.

S.N.J.S. , 2013 BCCA 379 at paragraph 29 , says that accountability is "concerned with the severity of the sentence in relationship to the seriousness of the offence." She also states that holding a young person accountable must be understood in the context of considering "whether the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society." [ 103 ] As I read it, S.N.J.S. confirms that the requirements in s. 38(2) (e) (

i) to impose the "least restrictive sentence" must be read independently of the other principles and purposes of the YCJA , "particularly 'accountability'." Thus when considering "accountability" (which takes into account the seriousness of the offence), as the sentencing judge, I must "balance and match the rehabilitative needs of the young person with the other purposes and principles of sentencing" (see S.N.J.S. at paragraph 29 ). [ 104 ] Rehabilitation of J.L. requires significant treatment to address the "moderate to high" risk for violence in the short term and the moderate to high long-term risk of reoffending.

These conclusions are reached in the reports of Dr. Fuhr, Dr. Prior, and Social Worker Dale. The further conclusion reached is that this treatment should be completed in the youth criminal justice system. I understand that the treatment must include a sex offender treatment program.

That opens the question of whether that can be accomplished in the community. [ 105 ] What finally persuades me that a noncustodial sentence is not a fit sentence and will not achieve J.L.'s rehabilitation is the opinion of Youth Probation Officer Smith who says as follows on page 9 in the August 27, 2013 pre-sentence report: The writer would normally consider a community-based sentence as the most appropriate method of effectively dealing with teenagers who sexually offend. In this situation it is this writer's opinion that no level of community-based supervision would be considered appropriate at this juncture.

The combination of the serious violent sexual offense, and his apparent lack of recall of the event, combined with significant substance use issues make this writer leery of placing this youth in any situation where he is not monitored 24 hours a day. One (1) of the most important aspects of trying to deal with [J.L.] going forward will be his ability to get his substance use issues under control.

It is impossible to imagine much success in counseling and therapy unless his mind and body are free of drugs and alcohol. [ 106 ] Accordingly, when all of the required balancing is completed and all of the principles and purposes are taken into account, the scale tips strongly in favour of a custodial sentence for J.L., and a noncustodial sentence, accordingly, is not adequate to achieve the purposes set out in s. 38(1) .

Duration of the sentence for the offence of sexual assault causing bodily harm [ 107 ] Crown and defence have reviewed for me and rely upon a number of young person sentencing authorities, placed before the court, to support their respective positions with respect to the duration of the sentence for the sexual assault causing bodily harm and to guide me on the other issues before the court. [ 108 ] Crown authorities include: S.N.J.S. , supra ; R. v. D.M.T. , 2012 ABCA 142 ; R. v. J.L.W. , 2011 ABPC 368 ; R. v. D.A. , 2011 ONCJ

748 ; R. v. G.I. , [2012] Nu.J. No. 2 , and the trial decision at [2011] Nu.J. No 33 ; R. v. S.S. , 2010 BCPC 19 ; R. v. R.R.J. , 2009 BCCA 580 ; and an unreported decision of this court which I will cite as R. v. R.E.S. and L.J.H. , File 22127-5-C, Vancouver Registry, which is subject to a publication ban. [ 109 ] Defence authorities include: R. v. J.E.O. , 2013 SKCA 82 , and R. v. T.(L.) , (also indexed as R. v. D.S.) 2008 ONCA 740 ,

(2008) O.J. 4231. [ 110 ] I have read and considered all of these cases carefully and I have also considered the numerous cases cited in each of these authorities. Each case is unique in most respects, including but not limited to the facts of the offence, the aggravating and mitigating factors, and the offender's profile, all of which must be taken into account in sentencing.

That is what makes sentencing such an individualized process, especially under the YCJA . [ 111 ] These cases and the cases summarized in them lead me to conclude that an appropriate range of sentence in this case is between 12 months and 24 months, which is the low end of the range proposed by the defence and the maximum proposed by the Crown in accordance with the statutory cap. [ 112 ] In considering the length of sentence for J.L., except where I have otherwise indicated in these reasons, Crown's specific submissions described above on the sentencing principles in s. 38(2) and on the further matters that must be taken into account under s. 38(3) are very persuasive.

The need for long-term and continuous supervised treatment to be started and continued in a custodial setting is also an important concern when determining the duration of the sentence.

However, I also accept defence's submission about the role of J.L.'s family as an important part of J.L.'s therapy team, and that the duration of the sentence may have implications on their ability to participate in a meaningful manner and to assist in J.L.'s reintegration into society. [ 113 ] Taking all of the principles and considerations into account, I find that the appropriate sentence for this offence, before considering pre-sentence credit, is 22 months.

I also find that the sentence requires a consecutive eight-month intensive support and supervision program, but subject to the caps contained in s. 42(14) and (15) and further submissions of counsel. [ 114 ] In accordance with s. 42(2) (n) , the first two-thirds of the sentence must be served in custody and the balance under community supervision.

It is my view that Crown's submission that the maximum sentence sought could be subject to a review if warranted by J.L.'s progress is not in compliance with s. 39(8), which says that the court, in determining the length of a youth sentence, "shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under

section 94 ." Pre-Sentence Credit [ 115 ] I have heard extensive and helpful submissions on the issue of pre-sentence credit. In short, the law, according to our Court of Appeal, is that pre-sentence credit is not part of the sentence imposed. As the sentencing judge, I have available the applicable sanctions set out s. 42(2) of the YCJA , which includes the maximum periods of custody and supervision. I am required to take into account any time that the young person has spent in detention when I am determining what sentence to impose.

If it is appropriate, I can still impose a maximum period of custody and supervision that are available under the YCJA (see R. v. R.R.J. }. [ 116 ] The cases also confirm that I have considerable discretion and flexibility in dealing with pre-sentence credit and may, having regard to the circumstances, give anything from no credit up to some form of enhanced credit. [ 117 ] In this case, J.L. has been in custody over eight months and has not sought his release.

I will order that J.L. will receive credit for eight months of pre-sentence credit up to today's date to be roughly on the one-for-one basis being sought by defence. I do so based upon my review of the authorities and also taking into account all of the circumstance of this case and my view that this case should not be considered extraordinary and, as such, I should not retreat significantly from the usual one-to-one credit. [ 118 ] Another issue I must consider is how to allocate the pre-sentencing credit.

Should it be against the global sentence or credited entirely against the custodial portion of the sentence or the portion of the sentence within the community or in some other fashion? [ 119 ] Having reviewed the cases, and in particular, R. v. D.M.T. , I will apply the credit of eight months entirely against the custodial portion of the sentence and leave the community supervision portion of the sentence to remain intact. That will result in J.L. starting that community supervision sometime around the summer of 2014.

Sentence on the Breach of Undertaking [ 120 ] Having regard to all of the circumstance of the breach of undertaking, that is made more egregious by its timing so shortly after J.L.'s arrest and release on a very serious charge, and having regard to all of the purposes and principles of sentencing referred to above, I am going to impose another six-month consecutive intensive support and supervision order to run consecutive to the one imposed for the sexual assault, but subject to further submissions from counsel. [SUBMISSIONS] Final Terms of Sentences [ 121 ] THE COURT: Having heard further submissions from counsel, and in order to accommodate both the statutory caps in terms of sentencing, that is the two-year cap under s.42(14) and the three-year cap under s. 42(15) as well as to accommodate sufficient time for the STRIDE program to be completed, there will be an adjustment to the sentencing in the following fashion. [ 122 ] The 22-month custody and supervision sentence will be allocated in terms of days.

It is agreed by counsel that the sentence should be converted into days. Accordingly, the 22-month sentence totals 660 days. The 660 days will have two-thirds of it, that is 440 days, being served in custody. Having taken into account 240 days, that is, eight months times 30 days, so 240 days of pre-sentence

credit, that leaves a total of 200 days to be served under supervision in the community, subject to conditions. [ 123 ] MR. CHURCHILL: Your Honour, I'm sorry to interrupt you. I think it would be, if I heard you correctly, the order under sub (4) would be he would serve 200 days in custody to be followed by 220 days -- [ 124 ] THE COURT: Correct. I was explaining how I was going to get -- [ 125 ] MR. CHURCHILL: I'm sorry. [ 126 ] THE COURT: -- get there.

So the order under s. 42(4), taking into account the arithmetic will be as follows -- I am going to ask J.L. if he would stand, please. [ 127 ] Having pronounced sentence on you, you are ordered to serve 200 days, being the remaining portion of the sentence after pre- sentence credit, to be served in custody, to be followed by 220 days to be served under supervision in the community subject to conditions. [ 128 ] There will follow on that a two-month ISSP, being a total of 60 days, that is with respect to the sexual assault, and to accommodate attendance at the STRIDE program, there will be an adjusted increased consecutive intensive support and supervision program on the breach of undertaking that will total 12 months, in order to ensure that you will be able to complete that program in accordance with its schedule; that 12 months will convert to 365 days. [ 129 ] I am instructed under s. 42(4) of the YCJA to tell you that if you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well.

You should also be aware that under the provisions of the Youth Criminal Justice Act , the court could require you to serve the second period in custody as well. The periods in custody and supervision in the community may be changed if you are or become subject to another sentence. [SUBMISSIONS RE PROBATION TERMS] [ 130 ] THE COURT: Before I outline the conditions to J.L. and his family, I want you to understand that when the court orders things to be done, they must be done. It is not a suggestion. It is something that is mandatory. Do you understand that? [ 131 ] THE ACCUSED: Yes. [ 132 ] THE COURT: All right.

So the statutory conditions are set out in s. 97 of the Youth Criminal Justice Act . They are as follows. You must: (

a) keep the peace and be of good behaviour; (

b) report to the youth probation officer upon your release from custody within 48 hours and then be under the supervision of the youth probation officer -- [ 133 ] MS. HAGEN: Your Honour, I'm sorry to interpret. I think I may have confused Your Honour when you asked about the statutory conditions.

Section 97 are the statutory conditions in regard to the community supervision portion -- [ 134 ] THE COURT: That is what I am -- [ 135 ] MS. HAGEN: Yes, okay, and then the probation -- [ 136 ] THE COURT: There will be separate conditions with respect to -- [ 137 ] MS. HAGEN: Yes. [ 138 ] THE COURT: All right. [ 139 ] MS. HAGEN: Yes, and I'm sorry, I don't mean to interrupt you, but just -- [ 140 ] THE COURT: No, but I am obliged to state the statutory conditions that will apply. [ 141 ] MS. HAGEN: Okay.

Thank you. [ 142 ] THE COURT: All right. ...under (b) , report to the provincial director and then be under the supervision of the provincial director; that will be to report to the youth probation officer within 48 hours of your release and then be under the supervision of the youth probation officer. (

c) you must inform the youth probation officer immediately on being arrested or questioned by the police; (

d) you must report to the police or any named individual as instructed by your youth probation officer; (

e) you must advise the youth probation officer of your address of residence and report immediately to the youth probation officer any change (

i) in that address, (ii) in your normal occupation, including employment, vocation or education training and volunteer work, (iii) in your family or financial situation, and (iv) that may reasonably be expected to affect your ability to comply with the conditions of the sentence; and

(

f) not to own, possess, or have the control of any weapon, ammunition, prohibited ammunition, prohibited device, or explosive substance except as authorized in writing by the provincial director, that is, the youth probation officer, for the purposes of you participating in a program specified in the authorization. [ 143 ] In addition to those conditions which will cover your supervision during the community portion of your custodial sentence, there will be, in addition to that, the following conditions which will apply to the two intensive support and supervision orders. Again, these will be provided to you in writing. They will be as follows: (

a) Report to and be under the supervision of a youth probation officer at 101, 488 Albert Street, Nanaimo, British Columbia, and that is take effect upon the completion of the community portion of your custodial sentence. (

b) You are to reside in a home approved of by the youth probation officer and abide by the rules and regulations of that home. (

c) You are not to partake of any alcohol whatsoever. (

d) You are not to partake of any controlled substances defined by the Controlled Drugs and Substances Act except in accordance with a prescription from a licensed physician. (

e) You are not to have any contact, directly or indirectly, with the Complainant, [K.M.]. (

f) You are to attend and participate in counselling at the direction of your youth probation officer, including but not limited to sex offender treatment, therapy, and counselling. (

g) You are to abstain from owning, possessing, or carrying a weapon. (

h) You are not to possess any knives except for the purpose of and when preparing and eating food. (

i) You are to attend school regularly or attend a bona fide education program and apply yourself. You are not to be absent without parental or medical permission or permission of the youth probation officer. (

j) You are to attend a full-time attendance program at the direction of your youth probation officer and abide by the rules and regulations of that program. (

k) You are not to access or view pornography of any type except as part of the sex offender treatment program. (

l) You are to participate in an intensive support and supervision program and cooperate with its designated worker. [ 144 ] That leaves some further issues. [ 145 ] MR. CHURCHILL: Your Honour, before you move on, I just wonder -- [ 146 ] THE COURT: Yes. [ 147 ] MR. CHURCHILL: -- having read through that with you, whether the eighth condition that Mr.

Smith do not possess any knives except for purposes of any -- or purposes of preparing and eating food or except with permission of the youth worker in furtherance of programming, I think in STRIDE he may end up in a woodshop or -- [ 148 ] THE COURT: All right. [ 149 ] MR. CHURCHILL: -- maybe using it as a tool essentially. [ 150 ] THE COURT: So do you want "or except with the permission of the youth probation officer"? [ 151 ] MR.

CHURCHILL: I think that's broad enough so that if he takes a woodworking course or something where knives are going to used, that the probation officer could cover it off, so I think that's good broad wording. [ 152 ] THE COURT: Thank you. [ 153 ] Then specifically, turning to the additional orders that were being sought, I will make the DNA order sought pursuant to s. 487.051 of the Criminal Code , and I am also going to grant the weapons prohibition order sought by Crown pursuant to s. 51(1) of the YCJA for a period of two years. [ 154 ] I believe that leaves only the question of the order under s. 75 of the YCJA .

I have heard the submissions of counsel, and considered the provisions of s. 75(1) which provides as follows: 75.

(1) When the youth justice court imposes a youth sentence on a young person who has been found guilty of a violent offence, the court shall decide whether it is appropriate to make an order lifting the ban on publication of information that would identify the young person as having been dealt with under this Act as referred to in subsection 110(1). And considered subsection (2) which provides:

(2) A youth justice court may order a lifting of the ban on publication if the court determines, taking into account the purpose and

principles set out in sections 3 and 38, that the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk. Crown has indicated that the onus provision under subsection 3 places the onus on them to satisfy the court as to the appropriateness of lifting the ban; they take the position that they do not have sufficient evidence to satisfy that onus. Accordingly, the publication ban will remain in effect. (REASONS CONCLUDED)