R. v. John, 2023 BCPC 117

Citation: R. v. John 2023 BCPC 117 Date: 20230301 File No: 76987 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JAYDEN RAPHEAL ROBERT JOHN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: R. Smith Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: February 21, 2023 Date of Judgment: March 1, 2023

INTRODUCTION [1] Jayden John is a young Indigenous offender with a significant history of property crimes. Late in the evening of May 18, 2022,he accosted Trinity Williams while she was walking home alone after work. He followed Trinity Williams for a short distance beforegrabbing her with the intent of stealing her purse. Trinity Williams was able to escape with her purse and flag down a passing policecruiser. Shortly thereafter, Jayden John was arrested and incarcerated and charged with robbery. On July 27, 2022, Jayden John pledguilty to robbery. He came before me for sentencing on February 21, 2023.

The Crown seeks a custodial sentence of two years plus oneday in addition to the time Jayden John has already spent in pre-trial detention. The defence seeks a sentence of time served. The Crownand defence agree that whatever sentence I impose today ought to include two or more years of probation. ISSUE [2] The sole issue before the court is the appropriate sentence for robbery committed by Jayden John against Trinity Williams inPrince George, BC. EVIDENCE AND EXHIBITS [3] On February 21, 2023, I heard submissions on sentencing from Mr. R. Smith, Crown Counsel, and from Mr. J. LeBlond,counsel for Jayden John.

I also heard briefly from Jayden John directly who expressed remorse for his conduct.

The followingdocuments were placed before the court at the sentencing: Exhibit 1: Pre-sentence Report of Probation Officer Jeffrey Grainger (“PO Grainger”) filed with the court on September 9, 2022; Exhibit 2: Justin Conviction List dated May 19, 2022, for Jayden John (“Criminal Record”) Exhibit 3: Gladue Report for Jayden John prepared by Joan Cotie, Gladue Report Writer; Exhibit 4: Certificates of Jayden John, earned in the PHSA Program, PGRCC; and Exhibit 5: Psychiatric Assessment of Tyler Oswald, MD, filed with the court in Court File 72650-1 on December 12, 2019. Dr.

Oswaldreferences the Psychosocial Reports of Katrina Ludwig, dated October 19, 2017, and June 12, 2019, and the Psychiatric Reports of Dr.Kulwant Riar, dated November 17, 2017, and Dr. David Morgan, dated June 13, 2019. [4] Although the Pre-sentence Reports contain hearsay evidence, a sentencing judge has wide latitude as to the sources and types ofevidence upon which to base their sentence: R. v. Ellis, 2022 BCCA 278 .

Justice Dewitt-Van Oosten for the unanimous courtstates at para. 69: [69] Section 723(2) of the Criminal Code allows a judge at sentencing to “hear any relevant evidence presented by the prosecutor or theoffender.” Hearsay evidence is admissible . . . CIRCUMSTANCES OF THE OFFENCE [5] Shortly after 11:00 p.m. on May 18, 2022, after finishing work at a local restaurant, Trinity Williams was walking home downCarney Street, Prince George, BC. It was dark, but she tried to stay in the lighted areas to the extent that was possible. When she reachedCarney and Tenth Avenue, she became aware of a man following her.

She kept walking; he kept following. After three blocks, in aneffort to evade the unknown male, Trinity Williams attempted to cross the street. The man came up behind Trinity Williams and grabbedher from behind. He restrained Trinity Williams by placing his right arm across her upper chest just below her neck. The man orderedTrinity Williams to give him her purse. She refused. Instead, she yelled at him, “What the fuck is wrong.” The man released her andmumbled he was sorry. Trinity Williams ran down the hill on Carney Street towards Massey Drive.

The man continued to follow her.Trinity Williams told him to “fuck off.” When she reached the intersection of Carney and Massey Drive, Trinity Williams flagged downa passing police cruiser. RCMP Constable Belanger stopped his cruiser and came to her rescue. [6] Constable Belanger initiated an investigation involving a number of police officers and a tracking dog.

Eventually the RCMPofficers located and arrested Trinity Williams’ assailant and identified him as the accused: Jayden Rapheal Robert John (“Jayden John”).Constable Belanger arrested Jayden John and took him into custody for robbery, where Jayden John has remained until this day. THE OFFENCE [7] On July 27, 2022, slightly more than two months after the offence, Jayden John pled guilty to committing a robbery contraryto s. 344(1)(

b) of the Criminal Code. “Robbery” is defined in s. 343 of the Criminal Code as follows: Robbery 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence orthreats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person;

(

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 8 ] The penalty for robbery is set out in s. 344(1), which states: Robbery 344

(1) Every person who commits robbery is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; . . . (

b) in any other case, to imprisonment for life. [ 9 ] Robbery is a specific-intent offence. The Crown must prove beyond a reasonable doubt that the accused intended to commit the crime of robbery. Evidence of intoxication can sometimes raise a reasonable doubt that a person intended to do what they did. Jayden John told PO Grainger that at the time of the offence, he was under the influence of methamphetamines and had not slept in more than a week. In her statement to the police officer, Trinity Williams said she “couldn’t smell if he was intoxicated.” I gather she was referencing intoxication by alcohol.

In any event, Jayden John pled guilty to the offence on July 27, 2022, and Judge Nadon accepted his plea. Jayden John, who has been represented by senior counsel since his arrest, never resiled from, nor sought to withdraw, his plea. VICTIM IMPACT STATEMENT [ 10 ] Neither the Crown nor Probation Officer Jeffrey Grainger were able to connect with Trinity Williams in order to obtain a Victim Impact Statement. The Crown was unable to provide any description about Trinity Williams, other than she was walking home after work. Jayden John is a young, fairly large man.

The Crown led no evidence as to how Jayden John compared physically to Trinity Williams. From the fact that he placed his arm across her upper chest, suggests to me that he was likely taller than Trinity Williams. Despite the dearth of information about the victim, it is a safe inference that the robbery frightened Trinity Williams and the defence does not suggest otherwise. Still, in the absence of any information about the victim, the court cannot infer from the circumstances of this offence that she suffered enduring emotional or psychological harm.

Her reaction to Jayden John grabbing her and demanding her purse was plucky to say the least. CIRCUMSTANCES OF THE OFFENDER [ 11 ] Jayden John was born on July 6, 2001. At the time of the offence he was 20 years old; he is now 21. Jayden John is a member of the Tl’azt’en Nation. He was born in Fort St. James, BC and raised in Tache. In his Pre-sentence Report, PO Grainger describes the Tl’azt’en Nation’s troubled history in the wake of colonialism: The citizens of Tl’azt’en Nation have suffered the direct and the intergenerational impacts of residential schooling.

The effects have removed several traditional Indigenous concepts of self and community, without leaving anything by way of replacement. As a result, many of the people raised in Tl’azt’en Nation have no solid sense of self, and no basis by which to plan their futures, as individuals or as a community. This disconnection leads to numerous social ills, most of which present as unhealthy coping strategies and responses to stress or anger. Subsequently, the completion of school and maintenance of employment are difficult for many of the Tl’azt’enne. [ 12 ] Jayden John’s childhood was tragic.

From the exhibits filed in the sentencing hearing, I have gleaned the following background facts: a. All of Jayden John’s grandparents attended Indian Residential School, where they were treated badly and were sexually abused. They drank heavily and passed that habit on to their children who in turn passed it on to their children; b. Jayden John had tumultuous relationships with his parents throughout his life; c. In his formative years, Jayden John was raised in a chaotic home rife with violence, neglect, criminal-activity and transgenerational substance abuse; d.

Jayden John witnessed violence in his extended family and community to the point that violence became normative; e. Jayden John was physically and emotionally abused by various family members in various ways; f. When he was ten years old, Jayden John’s family left Tache and moved to Prince George; g. When he was 11, Jayden John was sexually abused by his uncle, which went unreported; h. Jayden John’s experience in school is best described as disastrous. In Grade 9 or 10, he dropped out of school permanently; i. When he was 14, Jayden John became a ward of the Ministry of Child and Family Development (“MCFD”).

He left his family home to reside in a MCFD group home;

j. Jayden John started using cannabis when he was 12 or 13 years old. When he was 14, he began using heroin andmethamphetamines; k. While still an adolescent, Jayden John became entrenched in a criminal lifestyle through his association with a negative peer group; l. Jayden John has not returned to Tache since he was 16 years old; m.

Jayden John has been diagnosed with neurodevelopmental and neurobehavioral disorders, including Attention Deficit HyperactivityDisorder, Conduct Disorder, mild cognitive impairment, Fetal Alcohol Spectrum Disorder (“FASD”), Generalized Anxiety Disorder andOppositional Defiant Disorder; Stimulant Use Disorder (severe), Opiate Use Disorder (severe), and possibly Antisocial PersonalityDisorder; n. Jayden John has no work experience; o. Jayden John accepts his antisocial behaviours and criminal offending are linked to his use of illegal drugs; and p.

Jayden John has been incarcerated or in foster care for much of his life. [13] While in custody, Jayden John has engaged in Indigenous cultural activities such as sweats. PO Grainger states that the PrinceGeorge Urban Aboriginal Justice Society (“PGUAJS”) is available and willing to work with Jayden John and assist him in connecting tohis culture and other community resources.

Jayden John may wish to participate in the PGUAJS’s program “Wellbriety,” which is “atwelve-step substance use recovery program informed by Indigenous teachings, in addition to talking circles and cultural activities.” CRIMINAL RECORD [14] As an adolescent, Jayden John became heavily involved in criminal activities and substance use. Consequently, Jayden Johnnow has a significant criminal record, beginning in 2017 when he was 16 years old.

Over the past five years, Jayden John has accrued sixconvictions for break and enter, three convictions for theft and one for possession of stolen property and one for mischief, all under$5,000. He has 14 convictions for breaches of court orders; four convictions for committing an indecent act in a public place; three forpossessing a weapon for a dangerous purpose; and one for sexual assault. Jayson John committed the index offence one week after hisrelease on Court File 76830-01.

Also, he would have just commenced his one-year probation with respect to that matter. [15] Jayden John has spent very little time in the community before committing a new offence. When released on conditions, JaydenJohn struggles with abiding by the conditions of community supervision orders. He attributes his offending to substance misuse andnegative peer associations.

PO Grainger states that despite his young age, Jayden John has been sentenced to periods of custody andcommunity supervision 14 times over the past five years. [16] Despite his dismal performance while under Community Corrections supervision, Jayden John appears to be doing well at thePrince George Regional Correctional Centre. PO Grainger states: . . . He has been moved in the Right Living Unit, which is reserved for clients who display positive behaviour and a commitment toliving a healthy lifestyle. As previously mentioned, Mr.

John has been working on his reading, writing and math skills with CorrectionalOfficer Brent Seaton. Mr. Seaton confirms Mr. John’s attitudes and behaviours have been positive during their interactions. BCCorrections’ file indicates Mr. John tends to display positive behaviours and be engaged in pro-social activities when residing in astructured environment. . . . Mr. John states his use of illicit substances is a significant factor for his failure to comply with the direction of his probation officer.Additionally, Mr.

John states he has suffered many losses of his family members over the past few years, which has taken an emotionaltoll. Mr. John expresses a desire to follow the conditions imposed upon him by the Court. Furthermore, he states he is open to addressinghis issues with substance misuse. CROWN’S POSITION ON SENTENCING [17] The Crown asks the court to impose a Federal sentence on Jayden John. This means a sentence of two years plus one day inaddition to the time he has already spent in jail. Jayden John has been in jail since his arrest on May 18, 2022.

As of March 1, 2023,Jayden John has spent 287 actual days in pre-trial custody. With enhanced credit of 1:1.5, he has 430.5, rounded up to 431, days ofenhanced credit in pre-trial detention. Effectively, the Crown is seeking a jail sentence of approximately three years and two months. [18] The offence of robbery also attracts a mandatory DNA order and a discretionary weapons prohibition. The Crown also seeks ano-contact order with Trinity Williams while Jayden John is in custody. [19] The Crown relies on the case of R. v. Ali, 2022 BCCA 83 , citing R. v. Brogan,1999 BCCA 278.

DEFENCE’S POSITION ON SENTENCING [20] The defence proposes a jail sentence of time served followed by two to three years’ probation, which will include a referral to afull-time attendance treatment program. [21] The defence has provided the court with R. v. Smith, 2016 ONSC 4700; R. v. Wollmann, 2017 BCPC 130, citing R. v. Hansen,2012 BCCA 142. PRINCIPLES AND PURPOSE OF SENTENCING [22]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crime-prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society, by imposing just sanctions, to have one

or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [23]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate tothe gravity of the offence and the moral blameworthiness of the offender. The goal in sentencing is a fair, fit and principled sanction andproportionality is the organizing principle in reaching this goal: Parranto, 2021 SCC 46 , para. 10. It is grounded in elementalnotions of justice and fairness and indispensable to the public’s confidence in the justice system: R. v.

Safarzadeh-Markhali, 2016 SCC14, at paras. 70-71; Lacasse, paras. 3-6. [24] Other important but secondary sentencing considerations are set out in s. 718.2, which state in relevant part: Other sentencing principles 718.2 . . . (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [s.718.2(

b) of the Criminal Code (the “parity principle”). The parity principle means that any disparity between sanctions for differentoffenders needs to be justified: Ipeelee, at para. 79]; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [s. 718.2(

d) and718.2(

e) of the Criminal Code (the “restraint principle”). The sentencing judge should treat imprisonment as a sanction of last resort andlimit any custodial period imposed to the lightest term reasonable in the circumstances: R. v. Bosco, 2016 BCCA 55 , para. 35.] . . . DETERMINING A PROPORTIONATE SENTENCE [25] In Parranto, the Supreme Court of Canada stated [citations omitted]: [113] In order to produce proportionate sentences, sentencing must be a “highly individualized exercise” . . . Sentencing judges mustdecide a profoundly contextual issue: “. . .

For this offence, committed by this offender, harming this victim, in this community, what isthe appropriate sanction under the Criminal Code?” . . . They must determine which objectives of sentencing merit greater weight andevaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case . . . [Emphasis in original.] THE OBJECTIVE GRAVITY OF THE OFFENCE [26] In R. v.

Sharma, 2022 SCC 39 , the Supreme Court of Canada emphasized (at para. 108) the gravity or seriousness ofthe offence is not to be confused with an offender’s circumstances, which may serve to attenuate his moral blameworthiness. Thepersonal circumstances of an offender do not serve to make the offence any less serious. In R. v. Ellis, 2022 BCCA 278 , JusticeDeWitt-Van Oosten explained (at para. 130), “[the] ‘gravity of the offence’ . . . is directed to what the offender did wrong.

It includestwo components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values . . ." [27] In Sharma, the Supreme Court of Canada stated at paras. 4 and 105 that maximum sentences for an offence are a reflection of,and a proxy for, its seriousness. By this measure, robbery is objectively one of the most serious offences in the Criminal Code because itattracts a maximum jail sentence of life imprisonment: s. 344(1)(

b) of the Criminal Code. PARITY: SENTENCING RANGES [28] The principle of parity requires the sentencing judge to consider sentences imposed on similarly-situated offenders who havecommitted similar offences in similar circumstances. The principle of parity of sentences has sometimes resulted in the adoption of asystem of sentencing ranges and categories: Lacasse, paras. 56–57. [29] In Parranto, the Supreme Court of Canada recognized that sentencing ranges are one of the tools at a judge’s disposal in aneffort to apply the principle of parity. Sentencing ranges inform the objective seriousness of the offence.

In Ellis (at para. 126), JusticeDeWitt-Van Oosten identified the following principles that emerge from the majority judgment in Parranto: [126] . . . * Sentencing ranges reflect “judicial consensus on the gravity of the offence” (at paras. 20, 44, emphasis added). * They provide judges with a “place to start” in crafting a fit sentence (at para. 16). * Sentencing ranges are established based on “strictly offence-based considerations” (at para. 47, emphasis added). * Ranges do not factor in the characteristics of the offender (at para. 47). [30] In R. v.

Ali, 2022 BCCA 83 , the BC Court of Appeal discussed the sentencing ranges for the offence of robbery (s.contrary to s. 344(1)(

b) of the Criminal Code:

[2] This offence carries a maximum punishment of life imprisonment. The generally applicable range of sentence for robbery involvingovert violence, including the use of a weapon, is often stated as between two and nine years’ imprisonment: R. v. Brogan, 1999 BCCA278 at para. 10; R. v. Beguin, 2019 BCCA 50 at para. 19; R. v. Marks, 2016 BCCA 480 at para. 11; R. v. Weber, 2016 BCCA 279 atpara. 16; R. v. Heatley, 2015 BCCA 453 at para. 24. [31] Justice DeWitt-Van Oosten goes on to say (at para. 3) that range is not binding.

Sentencing ranges serve only as non-bindingguidelines to assist sentencing judges in reaching a proportionate sentence. They are not hard and fast rules or straitjackets: Parranto,paras. 36–38. The overarching principle of proportionality requires sentencing judges to individualize their approach to sentencing.Ultimately, parity in sentence is secondary to proportionality: Parranto, paras. 10–12. [32] Ali, involved a robbery of a young woman who was using an automated teller machine (“ATM”) at night. Mr. Ali threatened tostab her with a screwdriver.

He forced her to remove $400 from her account and give it to him. The victim was significantly impacted bythe robbery. Her money was never recovered and she lost work. The Court of Appeal found the Provincial Court’s sentence of anine-month conditional sentence and one year of probation unreasonably departed from the fundamental principle of proportionality. Theappellate Court allowed the Crown appeal and substituted an 18-month conventional term of imprisonment, followed by two years ofprobation.

Justice DeWitt-Van Oosten went on to say the two year probation order was “justified given the unknown risk presented byMr. Ali, the inability to assess his rehabilitative prospects, and the need for community-based supervision to protect the public.” [33] In R. v. Sark, 2020 PECA 9 , the Prince Edward Island Court of Appeal held the primary objective of sentencingviolent offenders for violent offences, such as robbery, must be protection of the public through emphasis on general deterrence anddenunciation.

The appellate court went on to discuss the possible sentencing dispositions for robbery: [40] Sentencing, Clayton C. Ruby, pp.1064-1066, provides an overview of the offence of robbery. It has a maximum penalty of lifeimprisonment. The seriousness of the offence lies in the threats or violence being employed in the course of stealing from the victim. [41] The sentencing dispositions in robbery cases reveal that consideration of the individual features of the particular offender aresecondary.

Dispositions usually proceed on the basis that the offence itself, regardless of who commits it, requires a certain term ofimprisonment. General deterrence becomes the primary aim of sentencing and takes predominance over any rehabilitation of theoffender. General deterrence is seen as a necessary response to of [sic] robbery. Robbery is also generally a premeditated act thatinvolves some conscious planning. [34] Justice Michele M.

Murphy for the unanimous court goes on to typify robbery as a common offence that includes muggings,robbery of taxi drivers, small commercial establishments and banks, and home invasions. She concluded the robbery of the victim inSark, as in the case before me, was best described as a “mugging”. Justice Murphy goes on to state: [43] The least serious form of mugging are those in which the individual victim is robbed by an offender who is not carrying a weaponand who uses intimidation and some force rather than the actual application of violence.

Even in the absence of physical violence, anoffender who commits a mugging is still likely to face some incarceration. (Ruby, pp. 1065-1066). [35] In R. v. J.M.O., 2017 MBCA 59, the Manitoba Court of Appeal held that the starting point is two to four years for armedrobbery where the victim is a vulnerable employee (see para. 114). Mainella JA defined a “street mugging” as “a robbery conducted in apublic place, typically where the parties do not know each other, and where the motive of the assailant or assailants is to steal thevictim’s property” (at para. 116).

Justice Mainella noted that a starting point of 12 to 18 months’ imprisonment has been recognized inAlberta and British Columbia where there is no serious injury to the victim and the proceeds of the robbery are modest. (See R. v.Porter, 1996 CarswellBC 282; R. v. Thompson, 2003 BCCA 308; R. v. Ruckman, 2003 BCCA 456; and R. v. Labrash, 2006 BCCA 357).Justice Mainella states at para. 117: [117] . . . Relevant factors that will aggravate sentence include the degree of planning, use of a weapon and vulnerability of the victim(see R v Ridgeway, 2012 ABCA 29 at para 9).

A lengthy or related record will place the offender towards the higher end of the range.Where the violence used is particularly serious in terms of the injuries caused or those foreseeable from the force used, a longer sentencewill be called for. [36] In R. v. Brogan, 1999 BCCA 278, the offender robbed two convenience stores while armed with a pellet gun.

Madam JusticeRyan, writing for the Court, set the range at two to nine years for robbery with a weapon and provided a non-exhaustive list of factors toconsider, including: the age of the offender; criminal history; level of violence; number of offences; level of premeditation; whether theoffender was disguised; type of weapon and how it was used; possibility of rehabilitation; and the need for deterrence in the particularcommunity. The appellate court noted the trial judge determined that the single most aggravating feature of Mr.

Brogan’s offences wasthe callous way in which he terrorized the cashier and his hostage in the second robbery in order to obtain money. Masked and holding agun to the head of the hostage, Mr. Brogan counted down the seconds to what the young cashier believed was the end of her life. Thetrial judge determined that deterrence and denunciation were the most important factors in this Mr. Brogan’s sentence. [37] In R. v. Thompson, 2003 BCCA 308 , the 35-year-old first offender pled guilty to robbery. He grabbed the purse of awoman who had just left an ATM. She refused to let it go and he dragged her a short distance.

Mr. Thompson pled guilty to the offenceof robbery. The BC Court of Appeal describes the street robbery as “purse snatching.” The trial judge imposed a sentence of 12 months’jail followed by two years’ probation. On appeal, the BC Court of Appeal substituted a sentence of three-months’ jail followed by twoyears’ probation, with the condition the offender attend a residential treatment facility. The fact the offender had completed a drug andalcohol program satisfied the appellate court he had very good prospects for recovery. [38] In R. v.

Ruckman, 2003 BCCA 456 , the 30-year old offender robbed a 55-year-old woman he found walking alone at8:00 p.m. He ran up behind her and grabbed her purse. When she resisted, he drew a knife and began slashing at her body close to herstomach. She relented; Mr. Ruckman grabbed her purse and fled. The victim was terrified, but not otherwise injured. Mr. Ruckman wasprofoundly deaf since birth. He has a substance-abuse problem and a prior criminal record.

The Court of Appeal reduced the three-yearsentence imposed by the Provincial Court Judge to two years less a day to take into account several factors, including the harsh effect ofincarceration on the accused as a result of his hearing disability.

[39] In R. v. Labrash, 2006 BCCA 357 , the offender accosted the victim in a parkade when she had stopped her vehicle.When the victim resisted, the offender dragged her out of her car and she landed on the pavement with sufficient force to injure hertailbone. The victim suffered bruises and abrasions and significant psychological distress. The offender had a minor unrelated criminalrecord. He pled guilty to robbery and was genuinely remorseful. The trial judge imposed an 18-month custodial sentence, which theCourt of Appeal upheld saying it was in the range imposed in similar cases. [40] In R. v.

D.F.B., 2006 BCCA 350, the BC Court of Appeal upheld what was effectively a three-year jail sentence for robbery bypurse snatching. The 39-year-old offender had a lengthy criminal record which included prior convictions for assault and robbery. Hewas on probation at the time of the offence. The offender rode up behind the victim on a bicycle and snatched the wallet she was holdingin her hand. The victim tackled the offender and wrestled him to the ground in an attempt to recover her wallet. The offender wasundeterred by her resistance and escaped with her wallet.

The victim suffered a bleeding lip and a cut during her struggle with theoffender. In upholding the sentencing decision of PCJ Smith, the BC Court of Appeal agreed that denunciation and deterrence wereproperly the primary goals of the sentence imposed by the sentencing judge. [41] In R. v. Jimmie, 2009 BCCA 215, the Court of Appeal upheld a jail sentence of two years plus a day imposed on an Indigenousoffender for a “violent purse snatching” in Quesnel, BC. The female victim was 81 years old. She suffered minor injuries in herunsuccessful struggle to resist the offender. [42] In R. v.

Awasis, 2010 BCCA 213, the 29-year-old Indigenous offender was sentenced to two-years’ jail in addition to 3½months in pre-sentence detention. The offence occurred in the early hours of the morning on the Skytrain. The offender stole $60 fromthe victim’s wallet. At the time of the offence, Mr. Awasis had been out of jail for only a week and on probation. He had a lengthycriminal record including four previous convictions for robbery, as well as convictions for other violent offences such as assault, sexualassault, extortion and assaulting a peace officer.

In finding the sentencing judge did not underemphasize the goal of rehabilitation, theCourt of Appeal dismissed the appeal and upheld the Provincial Court sentence noting (at para. 11) the offender “has never made anygenuine attempt at treatment for his substance abuse problems” and his “actions in perpetrating the crime showed a high degree ofawareness and deliberateness, and cannot be attributed solely to drunkenness.” [43] In R. v. Vaneltsi, 2016 YKTC 14 , T.C.J. Cozens imposed a custodial sentence of two years followed by two years’probation.

The offender was 32 years old, Indigenous, with a lengthy criminal record, both as an adult and a youth. He had significantGladue factors. While intoxicated, the offender broke a window of a touring van and stole a purse and another bag containing a computerand money. The female victim approached him, he apologized and then the two became embroiled in a tug of war over the stolen bag.Mr. Vaneltsi stated he needed $40, which the female victim gave to him. Her male partner, having seen the altercation, arrived andstarted to wrestle with Mr. Vaneltsi. Mr. Vaneltsi broke free and attempted to flee with the bag.

The male victim caught up with him andMr. Vaneltsi finally dropped the stolen bag. [44] In R. v. Marks, 2016 BCCA 480, the BC Court of Appeal upheld PCJ Gardner’s sentence of 12 months’ jail for a late-nightrobbery of a gas station with an imitation handgun.

The 18-year-old offender had no criminal record; the robbery was not driven byprofit; he entered an early guilty plea; he took full responsibility for his actions and showed considerable remorse; he complied with strictbail conditions for almost three years; and he rehabilitated himself in the three years between the offence and sentencing througheducation, training and counselling.

In refusing to substitute a suspended sentence for the custodial sentence, Justice Stromberg-Stein forthe majority states: [11] There is no dispute that the range of sentence for a robbery with a weapon is usually two to nine years: Brogan at para. 10 . . . [Emphasis added] [45] R. v. Wollmann, 2017 BCPC 130, is a sentencing decision of Judge Brown of this Court, of a 22-year-old first-time offenderwho pleaded guilty to two counts of robbery at fast-food outlets. Mr. Wollmann did not have a weapon but held his hand in his pocketand gestured as though he did.

Judge Brown distinguished Brogan by the fact the violence in the case before him was minimal. JudgeBrown sentenced Mr. Wollmann to eight months’ jail followed by two years’ probation because of his youth, his lack of criminal recordand the low level of violence involved in the commission of the offence. [46] In R. v. Beguin, 2019 BCCA 50 , the BC Court of Appeal upheld a three-year plus three-month custodial sentence,followed by two years’ probation for three bank robberies. In two of the robberies, Mr. Beguin was masked and in one, he was armedwith a knife and pepper spray.

He was 26 years old with a grade 10 education. He suffered from a mild mental cognitive impairment andsevere substance abuse. He had received a number of serious psychiatric diagnoses and was considered a high risk to re-offend. He alsopled guilty. At the time of these offences, Mr. Beguin had just been released from jail and on probation for two robberies for which hehad received a three-year sentence. [47] In R. v. Hilbach, 2023 SCC 3 , the 19-year-old Indigenous offender was sentenced on a charge of robbery using aprohibited firearm, which carried a mandatory minimum of five years’ imprisonment.

The Supreme Court was presented with a numberof hypothetical situations where the offender pleaded guilty to the offence of robbery committed with a firearm. Of interest in this caseare the hypotheticals of Brian and Adam: [85] . . .

(4) Brian, a 21-year-old Indigenous man, suffers from alcoholism and fetal alcohol spectrum disorder, is extremely intoxicated and facedown in a snowbank when a good Samaritan stops to help him. He grabs the woman, reaches into his waistband, flashes a BB gun, andsnatches her purse. The BB gun is operable and capable of taking an eyeball out, but it is unloaded.

(5) Adam, a 26-year-old Indigenous man, suffers from a drug addiction and schizophrenia, and had a short criminal record. Whenmeeting his drug dealer in a parking lot, he produces an airsoft pistol, points it at his dealer, and takes some methamphetamines. Beforesentencing, he receives treatment for schizophrenia and his drug addiction.

[ 48 ] Justice Martin, for the majority in Hilbach , accepted the case of Brian and Adam as reasonably foreseeable hypotheticals. She states at para. 92: [92] Adam’s and Brian’s offences involved street muggings, an offence with a sentencing range around 12 to 18 months. Evidently, the use of a weapon and, in particular, a firearm is an aggravating factor in each case. Brian’s offence also involved the application of force to the victim, while Adam’s involved a greater degree of planning and a prior criminal record.

In Adam’s case, as well, there is the serious public safety risk involved in using a firearm to settle a drug dispute, a consideration that supports a significant sentence ( R. v. Delchev , 2014 ONCA 448 , 323 O.A.C. 19, at para. 20 ). This could support sentences significantly above this range. Nevertheless, the moral blameworthiness of both offenders is attenuated given the mental health and addiction issues that underlay their actions, as well as any applicable Gladue considerations. I therefore agree a sentence around two years would be fit and proportionate in these cases.

THE SUBJECTIVE GRAVITY OF THE OFFENCE [ 49 ] The subjective gravity of the offence requires an assessment of the circumstances of the offence and its commission. In R. v. Brogan , 1999 BCCA 278 (at para. 10 ), Madam Justice Ryan discussed the specific factors to address in relation to robbery: [10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years.

The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr. Brogan's situation exactly, none could. [ 50 ] In applying the Brogan factors to the case before me, I note: a. Age : Jayden John is a youthful offender of 21 years; b.

Criminal record : Although still very young, Jayden John had a serious criminal record for property offences, which included break and enter with intent, theft, mischief, possession of stolen property; c. Level of violence : In the instant case, Jayden John did apply force to Trinity Williams, but only briefly and not to the extent it caused her physical injury. He did not use or threaten to use any weapon; d. Number of offences : Jayden John is charged with one incidence of robbery. When Trinity Williams resisted Jayden John’s demand she give him her purse, he immediately relented, released her and apologized.

He did not take her purse; e. Level of premeditation : Jayden John’s statements to PO Grainger indicate the robbery was opportunistic and did not involve any forethought or planning. Although Trinity Williams reported to the police she noticed Jayden John following her for a number of blocks before accosting her, the evidence is not clear when Jayden John decided to try and steal her purse in relation to when he first noticed Trinity Williams on the street; f. Disguised : Jayden John was not disguised; g. Weapon : Jayden John did not use or threaten to use a weapon; h.

Possibility of rehabilitation : His early guilty plea, remorse and productive and pro-social behaviour while in custody, indicates Jayden John shows promise for rehabilitation. i. Community : Prince George has the unenviable reputation for being a small city where violent crime is prevalent. There is a significant need for deterrence of robbery in this community. Aggravating and Mitigating Factors and Collateral Consequences [ 51 ] Individualization in sentencing requires me to consider all aggravating and mitigating circumstances and the collateral consequences.

An aggravating factor, either statutorily or judicially mandated, will induce a court to impose a longer sentence than otherwise may be imposed. A mitigating factor will reduce the sentence that might otherwise be imposed. The absence of an aggravating factor does not equate to a mitigating factor or vice versa . The Crown bears the burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bears the burden of proving disputed mitigating factors on a balance of probabilities: R. v. Dreger , 2014 BCCA 54 (“ Dreger ”), para. 45 .

Collateral Consequences [ 52 ] The defence has not argued Jayden John suffered any legally relevant collateral consequence arising from the commission of any offence, the conviction for any offence, or the sentence imposed for any offence, that impacts the offender: R. v. Suter , 2018 SCC 34 , at para. 47 . Aggravating Factors [ 53 ] I find the following factors aggravating: a. Jayden John committed the index offence approximately one week after he had been released from custody on a previous conviction for theft under $5,000 and possessing a weapon for a dangerous purpose; b.

Jayden John was on probation at the time of the offence; and

c. Jayden John has a significant criminal record with multiple convictions for property offences. Mitigating Factors [54] In R. v. Hagen, 2021 BCCA 208 , Justice DeWitt-Van Oosten held (at para. 43) the principle of proportionality means: [43] . . . factors that attenuate moral culpability always require meaningful consideration at sentencing, even in the context of a graveoffence.

This will include, but is not limited to, cognitive impairment or mental health issues shown to affect an offender’s capacity tocontrol their impulses or appreciate the seriousness of their conduct or its risk; mental illness; addiction; traumatic personal events thatmay contribute to their offending behaviour; or Gladue factors. [55] I have considered below each of these factors identified in Hagen. INDIGENOUS HERITAGE [56] Jayden John is a member of the Tl’azt’en Nation. The Gladue report and Pre-sentence Report contain significant informationabout both Jayden John and the Tl’azt’en Nation.

In the Gladue Report, Jayden John described his engagement in Tl’azt’en culturalactivities (at p. 6): Jayden said he was involved in cultural activities as a child, making medicine bags, and attending sweats. He said his Grandparentstaught him about his clan and he went hunting with them. When he was in juvenile detention between the ages of 13 - 18 years, he tookpart in a pipe ceremony, did Sun dances, and made moccasins.

His recent experience with cultural events has occurred while he isincarcerated (past three years on and off at Prince George Regional Corrections Centre) as he has been able to attend AboriginalPrograms such as making drums, and medicine bags. He said they are currently setting up a sweat lodge. Jayden said participation in hisculture makes him feel free and that there is hope for the future. He said his culture is healing to him but when asked what his culturemeans to him, he said, "I don't really know." [57] The proportionality analysis must be undertaken in the context of Jayden John’s Indigeneity.

I must consider the unique systemicor background factors which may have played a

part in bringing Jayden John before the court and the types of sentencing procedures andsanctions which may be appropriate in his circumstances because of his Indigenous heritage: R. v. Gladue, (SCC),para. 66; R. v. Ipeelee, 2012 SCC 13, at para. 59; R. v. Mero, 2021 BCCA 399, para. 69.

The court must take judicial notice of thehistory of colonialism, displacement, and residential schools and how that history continues to translate into lower educationalattainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and of course, higher levels ofincarceration for Indigenous peoples: Ipeelee at para. 60. These factors provide the necessary context for understanding and evaluatingJayden John’s moral blameworthiness of the offender: Ipeelee at para. 73. [58] In R. v.

Mero, 2021 BCCA 399, Marchand J.A. commented (at para. 111) on the “worsening crisis of overrepresentation ofIndigenous people in jails”. He reminds judges that when sentencing an Indigenous offender, they must take into account all of thesurrounding circumstances and “display sensitivity and understanding to the ‘difficulties aboriginal people have faced with both thecriminal justice system and society at large’”, Mero, at para. 70.

Justice Marchand goes on to state: [73] While restorative sentences may be more appropriate for Indigenous offenders, an application of Gladue principles will notnecessarily lead to a reduced sentence. There is no automatic heritage-based discount. Generally, the more serious or violent the crime,the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenousoffender: Gladue at para. 33; R. v.

Wells, 2000 SCC 10at paras. 42–44; Ipeelee at paras. 84–85. [74] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(

e) of the Code and Gladueprinciples. In fact, sentencing judges have a duty to do so and a failure to do so constitutes an error in principle. . . . [59] Jayden John said that he does not “really know” what his culture means to him. This lack of clarity or certainty does diminish theimportance of Gladue factors in this case. Recently, in R. v. Kehoe, 2023 BCCA 2 at paras. 56-57, Justice Marchand, for the BC Court ofAppeal stressed that disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policiesthat Gladue seeks to address.

Therefore, as the sentencing judge, I must consider whether and how Jayden John’s disconnection with hisculture played a role in him coming before the court and whether this context affects the fitness of his sentence. [60] PO Grainger’s Pre-sentence Report (Exhibit 1) and Joan Cotie’s Gladue Report (Exhibit 3) document Jayden John’s catastrophicchildhood. Jayden John’s experiences mirror that of far too many Indigenous people, which Parliament has recognized with its enactmentof s. 718.2(

e) of the Criminal Code. Joan Cotie states at p. 5 of her report: Jayden has experienced many of the Gladue factors listed below, including: loss of parenting skills and familial composition;normalization of violence and neglect; substance abuse/Addiction; Mental Health issues; low levels of educational attainment; the over-​-representation of Indigenous peoples in the child welfare and criminal justice systems; and, Fetal Alcohol Spectrum Disorder (FASO[sic]) & other related ailments. [61] I accept that Jayden John has suffered historical and intergenerational trauma as a result of his Indigeneity.

I also conclude that asa result of the Gladue factors in Jayden John’s life experiences, his moral culpability is lower than someone without those factors in theirlife. MENTAL HEALTH ISSUES [62] The BC Court of Appeal recognizes that mental-health issues can diminish the importance given to the objectives of specific andgeneral deterrence. Where an accused person has mental-health problems, the courts will often place greater weight on rehabilitation andtreatment rather than on punishment. In R. v.

Botticelli, 2022 BCCA 344 , the BC Court of Appeal discussed the mitigating roleof a mental-health disorder on sentencing. Justice Stromberg-Stein for the Court states:

[21] A proper accounting of the moral culpability of an offender will address the existence of any medical disorders that are capable ofimpairing an offender’s judgement: R. v. Penttila, 2020 BCCA 63 at para. 72. A court can consider a medical disorder as a mitigatingfactor warranting a reduction in sentence where the court finds, on a balance of probabilities, the disorder caused or contributed to thecommission of an offence: Penttila at para. 68; R. v. Forner, 2020 BCCA 103 at paras. 39–43; R. v. Pond, 2020 NBCA 54 at paras. 33–37.

In such circumstances, a reduction in sentence is warranted on the grounds the offender’s moral culpability is attenuated: Penttila atpara. 68. Where mental illness played a central role, the importance of deterrence and punishment is given less weight: Badhesa at para.44. [22] In assessing whether a link between a mental disorder and an offence exists, a sentencing judge should consider evidence addressingthe nature and magnitude of the disorder: Badhesa at paras. 43–44; Penttila at para. 68.

When assessing a fit sentence, the judge shouldattribute a degree of moral culpability to the offender that is commensurate with the magnitude of the mental illness and its overall role inthe commission of the offence: Badhesa at para. 44. [Emphasis in original.] [63] In his Psychiatric Assessment, Dr. Oswald describes Jayden John, then 18 years old, as a “young man with problems ofintellectual disability and impulsivity.” Dr. Oswald states: RECOMMENDATIONS . . . 3. While some of Mr.

John's psychiatric diagnoses are not amenable to treatment (intellectual disability, sequelae of in utero alcoholexposure), he would benefit from assessment and treatment for ADHD. Referral to mental health services· for this purpose isrecommended. [64] PO Grainger notes in his Pre-sentence Report that BC Corrections’ file information suggests Jayden John may be a suitable clientfor Community Living BC, a provincial agency that assists adults with developmental disabilities to connect with community supports.Jayden John has disclosed to PO Grainger he receives income from Persons with Disability.

In order for him to be designated as a“person with disabilities”, Jayden John would have to provide evidence from a prescribed professional proving he suffers from a severephysical or mental impairment that is expected to continue for more than two years. This evidence must show a direct and significantrestriction on at least two statutorily prescribed daily living activities: Employment and Assistance for Persons with Disabilities Act, SBC2002, c 41, s. 2 (2); Hudson v.

British Columbia (Employment and Assistance Appeal Tribunal), 2009 BCSC 1461. [65] I accept that Jayden John does suffer from a mental disorder that diminishes his moral blameworthiness for the offence presentlybefore the court. ADDICTIONS [66] R. v. J.L.H., [2012] B.C.J. No 619, R. v. Hansen, 2012 BCCA 142, the offender pled guilty to two late-night robberies; one of aconvenience store and the second of a gas station. Mr. Hansen committed these offences in an effort to obtain the resources to purchasedrugs to feed his addiction.

Justice Hinkson for the unanimous court rejected the proposition that an offender will “either choose or notchoose to use drugs”. Justice Hinkson states: [26] I am unable to agree with this characterization of the process of the potential rehabilitation of an individual addicted to drugs. Drugaddiction is an illness. For an addict, using drugs is not a simple “choice” to be either made or not made, but an illness “characterized bya loss of control over the need to consume the substance to which the addiction relates”: Canada (Attorney General) v. PHS CommunityServices Society, 2011 SCC 44, [2011] 3 S.C.R. 134).

Rehabilitation then, like the treatment of an illness, requires assistance in order tobe effective, and is not a simple matter of “choice” for those afflicted. [27] Unfortunately, drug addiction is a factor that must all too often be addressed in crafting an appropriate sentence. In R. v.

Preston(1990), (BC CA), 47 B.C.L.R. (2d) 273 (C.A.), this Court emphasized the importance of considering whether there is areasonable chance that the offender may succeed in an attempt to control his addiction in order to avoid imposing a sentence thataddresses the protection of the public at the expense of rehabilitation. [67] Hansen was recently reaffirmed by the BC Court of Appeal in Ellis, wherein Justice DeWitt-Van Oosten states: [12] However, what constitutes a fit sentence for Ms. Ellis must also be informed by the judge’s social context findings and Ms. Ellis’spersonal circumstances.

The judge’s findings shed important light on the moral blameworthiness of Ms. Ellis as an individual with along-standing substance use disorder, whose daily functioning and behavioural choices are deeply affected by an all-consumingillness: R. v. Hansen, 2012 BCCA 142 at paras. 25-26. [68] Jayden John has a longstanding addiction to heroin and methamphetamines which began when he was 14. Jayden John admittedto PO Grainger that at the time of the index offence, he was under the influence of methamphetamines and had not slept in more than aweek.

He told PO Grainger that while in custody, he is taking suboxone to treat his opiate misuse and trazodone to help him sleep. In hispsychological assessment, albeit three years ago, Dr. Oswald recommended Jayden John attend residential treatment targeting his severeStimulant and Opioid Use Disorders. In his interview with Joan Cotie, Jayden John said he “believes that counselling and treatment forhis addictions would be helpful to him.

He thought he would benefit from either individual or group counselling”. [69] Jayden John admits he has struggled with substance misuse, specifically, heroin and methamphetamines. (He denies having everconsumed alcohol with any frequency.) I understand that Jayden John told Dr. Oswald that on his release from custody, he would try toget rearrested and incarcerated because “more time in jail means more time away from drug life.” I do not know if Jayden John stillregards jail as a type of tough-love treatment centre, but he does appear to have thrived while on remand in PGRCC.

[70] PO Grainger opines that Jayden John appears to show insight into the link between his offending and substance misuse and hasexpressed his willingness to engage in counselling and treatment. Joan Cotie has set out a comprehensive healing plan in her GladueReport. She recommends Jayden John attend and complete the addictions treatment program at the North Wind Wellness Centre inDawson Creek, BC. I understand from his counsel’s submissions that Jayden John is amenable to that possibility. GUILTY PLEA [71] Jayden John pled guilty two months after he was arrested and incarcerated.

I find his early guilty plea a significant mitigatingfactor. In R. v. Randhawa, 2007 BCCA 598, Hall J.A., for the BC Court of Appeal, wrote at para. 7: [7] Here the learned sentencing judge adverted to the timely guilty plea of the appellant as a mitigating factor. Although he adverted toit, I do not consider he gave sufficient weight to it. An early guilty plea in this sort of case spares the victims and family members fromuncertainty and from the trauma of testifying and reliving the very unpleasant circumstances of these types of crimes.

A guilty plea isalso of benefit to the justice system in avoiding unnecessary trials. As well, it can also be said, as was observed by the sentencing judge,that such a disposition at an early stage of proceedings indicates an offender has taken responsibility for the crime and is a step on theroad to rehabilitation of the offender. REMORSE [72] An offender’s genuine expression of remorse can be a significant mitigating factor in sentencing.

Where, through their actions orwords, an offender demonstrates they are genuinely remorseful for their conduct, it can show that the offender has some insight into theirpast actions and takes responsibility for them. The court recognizes that taking responsibility for past conduct is an important step towardrehabilitation: R. v. Anderson, , Southin J.A. explains: [45] The factor of “remorse” is often important.

In so far as it might be suggested that the court should regard those who come before itin a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whateverfortitude they are able to summon, there would be little in this factor which could assist the sentencing judge.

But to the extent that anaccused person is able to demonstrate that he or she has, since the commission of the crime, come to realize the gravity of the conduct,and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of furtheroffending, the existence of remorse in this sense obviously has much importance. [46] The capacity of human beings who have erred to recognize the magnitude of their wrongdoing, and to redeem themselves, offersthe only possibility that those who have committed crimes may again become contributing members of the community, rather than itsburden for the rest of their lives. [Emphasis in original.] [73] In my view, Jayden John expressed remorse directly through his words and actions.

Specifically: a. Jayden John entered a very early guilty plea; b. Jayden John told PO Grainger that “he understands how his actions could be frightening to the victim” and that “he is willing to makean apology to the victim”; c. Jayden John told Joan Cotie that he understands what he did and regrets it. He said he was "totally sorry for what I did to this girl andI have written an apology to her." Jayden John says he accepts accountability for the harm he caused the victim. He realizes he willlikely receive jail time for his offence. He said, "It hurts but I deserve it for what I did.” d.

At his sentencing hearing, Jayden John told the Court he regretted his past behaviour, which I accept was sincere; e. In the nine or so months he has been in custody, Jayden John never sought his judicial interim release; f. While in custody, Jayden John embarked on his rehabilitative journey by maintaining his sobriety; g. Corrections moved Jayden John to the Right Living Unit in PGRCC, because of his positive behaviour and demonstratedcommitment to living a healthy lifestyle; h. As Exhibit 4 indicates, Jayden John used his time in custody productively.

He provided the Court with certificates confirming he hascompleted: i. The Provincial Health Services Authority (PHSA) Meth/Matrix 2 Program (in June 2022); ii. the Acquiring Community-Based Employment Skills (ACES) program which voluntary and designed to supportpeople to locate and secure employment; iii. one month of the PGRCC Adult Education Learning Program with respect to improving his reading, writing andmath skills with CO Seaton; iv. the PGRCC Institutional Janitorial Training Module; v. PGRCC Institutional Biohazard Program; vi. Recertification in Emergency First Aid and CPR/AED level C; vii.

S-185 Fire Entrapment Avoidance & Safety;

viii. WHIMIS 2015; and ix. Power Saw Operator Training Course. YOUTHFUL OFFENDER [74] In Lacasse (at para. 79), the Supreme Court of Canada recognizes that an offender’s youth is often an important mitigating factorto consider on sentencing. Although Jayden John is no stranger to the criminal justice system, he is still young and impressionable. Hehas lived in group homes from the time he was 14, until he aged out of MCFD care. He stopped going to school in Grade 9 or 10 andbecame ensnared in the street-level drug culture.

For most of his offending years (from 16 to 20 years of age), Jayden John not onlylacked maturity, he lacked guidance, oversight and supervision from parents, teachers, pro-social authority figures and positive rolemodels. It is not unexpected that Jayden John was left with a poorly functioning moral compass. Imprisonment is a punishment of lastresort for any offender. This is particularly true for youthful offenders who society generally considers as having the best prospects ofreforming and maturing. PROSPECTS FOR REHABILITATION [75] Jayden John appears committed to pursuing a pro-social lifestyle.

He indicated to Joan Cotie that he enjoys playing basketballand handball. He would like to obtain his Dogwood Certificate and train as a welder. He says he wants “to improve his life movingforward.” I accept that Jayden John’s professed desire to embrace a pro-social life is genuine. STEP-UP PRINCIPLE [76] Jayden John has been in custody now since May 18, 2022. He has never spent this long of a stretch in jail. The defence submitsthe jail sentence the Crown seeks, in excess of three years, offends the “step-up” principle. [77] The longest jail sentence Jayden John received to date was on Court File 74965-1.

On March 25, 2021, Jayden John pleadedguilty to an offence of break and enter of a dwelling house to commit the indictable offence of theft that occurred on April 19, 2020.Judge Mengering sentenced Jayden John to 264 days jail, time served, a DNA order and a ten-year s. 109 firearms prohibition. JaydenJohn had spent 176 actual days in pre-sentence detention, or 264 days with enhanced credit. On this matter, the Crown seeks a totalsentence of 1,162 days’ jail.

The offence of robbery and break and entry of a dwelling place both attract a maximum sentence of lifeimprisonment where the Crown has proceed by way of indictment. Hence, the Crown seeks a jail sentence in this matter which is almost4½ times longer than the sentence imposed on Court File 74965-1. [78] In R. v. Louie, 2017 BCCA 218, Justice Fitch discussed the “step-up” principle at para. 24: [24] . . . [T]he step-up principle embodies restraint by requiring, as a general rule, that sentences for repeat offenders go up in moderatesteps so as not to discourage rehabilitative efforts: R. v.

Kory, 2009 BCCA 146 at para. 6. The step-up principle is not of great assistancein a case of this kind where an offender with a lengthy record of related behaviour for which he or she has received consistently lowsentences has been undeterred by previous sanctions and has failed to benefit from previous interventions designed to ameliorate the riskof re-offence. [79] Typically, the step-up principle is given lesser weight when sentencing for offences such as robbery where the paramountsentencing principles in play are denunciation, deterrence and the protection of the public.

In this case, however, given Jayden John’spersonal circumstances, including his youth, disadvantaged background, indigeneity, mental illness, cognitive impairment and addiction,rehabilitation is also an important principle. Hence, the step-up principle is applicable. I agree with the defence that any increase insentence should be moderate so as to not discourage Jayden John from rehabilitating himself lest he view the sentence as “a dead weighton his future life”: R. v. Robitaille, , para. 9. DISPOSITION [80] I find that the offence for which Jayden John is before the court is best described as a street mugging.

The paramount sentencingprincipals are denunciation, deterrence, protection of the public and rehabilitation. I accept the appropriate range of sentence for robberywhere the offence is committed without a weapon or injury to the victim is 12 to 18 months’ jail. Given Jayden John has a criminalrecord for property-related crimes involving some degree of violence, I find the appropriate sentence militates toward the higher end ofthis range.

However, factoring in Jayden John’s extensive mitigating factors, I find that a proportionate sentence falls somewhere in themiddle of the range. [81] Jayden John has spent 287 actual days in jail for this offence. He is entitled to enhanced credit at the ratio of 1:1.5, for a total of431 days. Although he has flourished in PGRCC, it is not a facility for housing and treating a young man with Jayden John’s disabilitiesand disadvantages. In my view, a time-served sentence is appropriate where it is followed by a period of probation which includes acondition that Jayden John attend a residential treatment facility.

JAIL SENTENCE [82] Jayden John, I sentence you to a period of incarceration of 431 days which you have served by virtue of your pre-sentencedetention on this matter. PROBATION ORDER [83] You must comply with a probation order for a term of 24 months with the following conditions: a. You must keep the peace and be of good behaviour.

b. You must appear before the court when required to do so by the court. c. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. d. You must have no contact or communication directly or indirectly with Trinity Williams; e. You must not go to any place where Trinity Williams lives, works, attends school, worships, or happens to be. If you see her, you must leave her presence immediately without any words or gestures. f.

You must report in person to a probation officer at Prince George Community Corrections, 100 – 250 George Street, Prince George, BC by 3:00 p.m. tomorrow , March 2, 2023, and after that, you must report as directed by your probation officer. g. When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your probation officer. h.

For the first six months of this order, you must obey a curfew by being inside the place where you live and regularly sleep between 11:00 p.m. and 6:00 a.m. each day. The exceptions are:

a) you have the prior written permission of your probation officer. Such permission is to be given only for employment or other reasonable purposes.

b) you are going directly to, or returning directly from, a healthcare facility because of a medical emergency. You have consented in court to provide proof of your attendance of the healthcare facility. You have consented in court to attend a full-time treatment centre. You must obey by being in your house or inside the place where you live or regularly sleep or on the lot in which it is located. i. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for: (

a) alcohol or substance use; (

b) mental health; (

c) trauma recovery. j. You must not possess or consume alcohol, illegal drugs, intoxicating substances, marijuana, and prescription medicine except with a medical prescription. k. Having consented in court , you must attend, participate in and complete any intake, assessment, program, treatment , or a full time live-in treatment program as directed by your probation officer. This may include programming or treatment for substance use or psychiatric and psychological health; and l. You must not possess, directly or indirectly, any weapon as defined by the Criminal Code .

ANCILLARY ORDERS [ 84 ] I make the following ancillary orders: a. Count 1 on Information 76987- 1 is a primary designated offence. After considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. b. You must attend at the RCMP detachment in Prince George, BC on or before April 30, 2023, and submit to the taking of the samples. This order is valid until executed. c.

Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for life; and any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. d. Pursuant to

section s. 737(2.1) of the Criminal Code , because of your impecunious financial circumstances as the result of being incarcerated for the past nine months, I find the Victim Fine Surcharge would cause an undue hardship to you and I order you to pay no surcharge. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia