R. v. I.N.M. et al. Date:, 2017 BCPC 353

Citation: R. v. I.N.M. et al. Date: 20171120 2017 BCPC 353 File Nos: 23639-1, 23664-1, 23664-2-A, 23664-3-A, 23695-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. I.N.M. I.Z.N. F.N. D.P. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.M. RIDEOUT YOUTH MATTER - RESTRICTION ON ACCESS s. 118 and s. 110 YCJA Counsel for the Crown: S. Watson, Q.C. Counsel for Accused I.N.M.: S. Head Counsel for Accused I.Z.N.: I. Ferby Counsel for Accused F.N. : B. Durrant Counsel for Accused D.P. : N. Preshaw Place of Hearing: Vancouver , B.C. Dates of Hearing: September 18, 19, 21 and 22, 2017

Date of Judgment: November 20, 2017 I. INTRODUCTION [ 1 ] On July 19, 2016, a riot broke out at the Burnaby Youth Custody Center (the “BYCC”). The riot took place over a span of approximately six hours, commencing at approximately 2030 hrs. and carrying on until approximately 0230 hrs. [ 2 ] The Fairweather and the Fernie units at the BYCC are connected by a staff office. Both living units and the staff office were essentially destroyed during the riot. In the later stages of the riot, a fire was started in the Fairweather unit.

Fortunately, the fire was extinguished before it could have become a significant threat to the riot participants or to other inmates and staff at the BYCC. [ 3 ] There were five youths who participated in the riot, including I.N.M., I.Z.M., F.N., and D.P.

I.N.M., I.Z.M., F.N., and D.P. have pled guilty to participating in a riot contrary to s. 65 of the Criminal Code of Canada (the “ Code ”) and mischief by wilfully damaging property of a value in excess of $5,000 contrary to s. 430 of the Code . [ 4 ] I.N.M. and D.P. have additionally pled guilty to intentionally or recklessly causing damage by fire contrary to s. 433 (

a) of the Code . [ 5 ] A.F. is also one of the five youths. He has pled guilty to various offences, including participating in the riot. His sentence hearing proceeded separately from the other youths. [ 6 ] The Information relating to the riot, mischief to property, and arson was sworn February 2, 2017. Process for the five youths who participated in the riot, mischief to property and arson went by warrant. Warrants were executed on all five youths. [ 7 ] On November 22, 2016, at the Ann-Louise Jewellers store at Metrotown Mall in Burnaby, D.P. stole gold chains valued at $6,746.

He then ran through the mall to make his escape. During his flight he was pursued by a security officer. D.P. sprayed the security officer with bear spray. The security officer abandoned his pursuit of D.P. who then successfully fled the mall. [ 8 ] There was excellent security camera footage that was seized by the police from the mall. That footage clearly identified D.P. as the thief. [ 9 ] D.P. has pled guilty to committing an assault on the security officer during the course of which he used bear spray contrary to s. 267 (

a) of the Code . He has also pled guilty to the theft of the gold chains from Ann-Louise Jewellers contrary to s. 334 of the Code . [ 10 ] After the riot, but before the Information relating to the riot was sworn, I.Z.M., while in custody at the BYCC on September 14, 2016, became involved with three other youths in a swarming attack on another youth, S.G., which caused bodily harm. [ 11 ] I.Z.M. has pled guilty to assault causing bodily harm to S.G. contrary to s. 267 (

b) of the Code . [ 12 ] There are various security cameras (the “CCTV”) located in the Fairweather and Fernie units, which captured the actions of the youths who participated in the riot. The CCTV footage was played at this hearing and then marked as an exhibit. [ 13 ] Similarly, I.Z.M.’s involvement in the swarming of S.G. on September 14, 2016, at the BYCC was also captured on CCTV and the footage was played at this hearing and then marked as an exhibit. II.

ADMISSIONS OF FACT RESPECTING THE RIOT (FILE 23664-1) [ 14 ] Pursuant to s. 655 of the Code , extensive Admissions of Fact relating to the riot Information were filed. For ease of reference, I have compressed the Admissions of Fact into

summary form. A. Events Leading Up to the Riot • There were seven youths living in the Fairweather unit on July 19, 2016. Six actively participated in the riot, including I.N.M., I.Z.M., F.N., D.P. and A.F. S.G. also participated in the riot, but as he was 18 years of age at the time, he will be dealt with in adult court; • The Fairweather unit consisted of a small kitchen, dining area and lounge. The staff office adjoined the Fairweather unit and the neighboring Fernie unit; • As a result of information received by staff, a search was conducted of the Fairweather unit at 1500 hrs.

A tattoo gun was located in I.N.M.’s room and seized as contraband. Staff also located bars of soap in a sock in the common area which they believed could be used as a weapon; • Around 1900 hrs., staff observed suspicious activity taking place between all of the youths living in the Fairweather unit. The youths appeared to be highly energized, so they were taken to the outside courtyard in an effort to settle them down; • Once the youths returned to the Fairweather unit, staff observed them grouping together at the sink in the kitchen with some of the youths heating water in water bottles in the microwave oven.

Staff suspected that something was afoot; • At 2026 hrs., D.P. pushed past a staff member in the staff office and attempted to grab a “mag flashlight” that was located under a desk. D.P. was ordered out of the office and the staff member called a “Code Yellow”; • The staff member then entered the Fairweather unit and observed six of the seven youths scatter. F.N. and D.P. climbed up on the cupboards above the sink in the kitchen. I.N.M., I.Z.M. and A.F. climbed up onto the window ledge in the dayroom;

• At approximately 2027 hrs., Senior Youth Supervisor, Grant Bunker (“Bunker”), arrived at the Fairweather unit. He was followed shortly by a number of other staff. Some of the youths were observed holding items in their hands, making threats to staff, and showing water bottles which they indicated they had filled with boiled water, urine, and possibly other noxious substances; • Staff attempted to use verbal persuasion to de-escalate the situation and the youths were given directions to come down from their positions, but they refused. A youth identified as “E.” did not participate in the riot.

He complied with staff directions to return to his room where he remained locked-in during the course of the riot; • From their elevated positions above the staff, the youths began threatening the staff and calling them out with words to the effect of, “Come and get me you goofs”; • Approximately three minutes after staff entered the Fairweather unit, Bunker called a “Code Red” and directed that the unit be vacated for staff safety. A couple of staff members were directed to stay in the staff office to monitor the situation.

The staff were concerned that the youths would get hold of more supplies to use against them; • From the staff office, staff members continued to make verbal attempts to direct all of the youths to stand by their respective rooms so that they could be secured inside. None of the youths complied, rather they continued to direct profanities at staff members; • At 2030 hrs., F.N. removed the microwave plate from the microwave oven and smashed it on the floor of the Fairweather unit. The riot commenced. B. Actions of I.N.M., I.Z.M., F.N. and D.P. in the Riot 1.

I.N.M. (a) 2030 hrs. - 2100 hrs.; • Climbs onto the windowsill of the Fairweather unit; (b) 2100 hrs. - 2130 hrs.; • Flips tables toward staff office; receives microwave from D.P. and throws it to the ground; pushes flipped tables in the common room to block doors in the hallway; along with F.N., breaks the TV off the wall and throws into a pile being formed in the hallway as a barricade; and, breaks kitchen cabinets; (c) 2130 hrs. - 2200 hrs.; • Enters the staff office after the door was broken by A.F.; breaks some items in the staff office; discharges a fire extinguisher; and, participates in breaking into the Fernie unit; (d) 2200 hrs. - 2230 hrs.; • Adds material to the barricade the youths were building in the hallway leading to the main building; rips off a cabinet door; (e) 2230 hrs.- 0030 hrs.; • Tries to break down door to an anteroom located in the Fernie unit; actively moving about the Fernie unit; (f) 0030 hrs. - 0100 hours; • Tagging walls in the Fernie unit; throws around a light cover; throws a television to the floor; and, spraying walls; (g) 0100 hrs. - 0130 hrs.; • Exposes his buttocks at the window of the Fairweather unit; tries to light a fire using a toaster and pieces of paper; and, further tagging; (h) 0130 hrs. - 0200hrs.; • Feeds fuel to the fire started by D.P. in the Fairweather unit; and, urinates at room 8 of the Fernie unit; (i) 0200 hrs. - 0230 hrs.; • Surrenders to the police. 2.

I.Z.M. (a) 2030 hrs. - 2100 hrs.; • Climbs onto the windowsill of the Fairweather unit; (b) 2100 hrs. - 2130 hrs.; • Climbs down from the windowsill and stacks some chairs below the window; (c) 2130 hrs. - 2200 hrs.;

• Breaks some lights on the upper tier of the Fairweather unit with F.N.; enters the staff office after the door was broken down by A.F.; breaks some items in the staff office; tags walls and doors; takes a guitar out of the staff office and throws it onto the ground; adds items to the corridor blockade; throws objects within the living unit; and tries to kick in the door to an anteroom; (d) 2200 hrs. - 2330 hrs.; • Adds further items to the corridor blockade and tries to break down a door with D.P.; (e) 2330 hrs. - 0230 hrs.; • Wanders around the Fairweather and Fernie units until he surrenders to the police. 3.

F.N. (a) 2030 hrs. - 2100 hrs.; • Puts a water bottle in the upper cupboard of the kitchen; climbs on top of the cabinets in the kitchen; removes the circular microwave oven plate and smashes it on the ground; throws paper towels to the ground; and, he climbs down from the top of the cabinets and removes items from the kitchen cabinet drawers and throws them onto the ground; (b) 2100 hrs. - 2130 hrs.; • Breaks some of the kitchen cupboards and drawers; smashes the wall-mounted television with a cupboard door; throws a cupboard door at the staff office; helps to build the corridor blockade; breaks the wall-mounted television off the wall with I.N.M.; and, pushes chairs into the corridor; (c) 2130 hrs. - 2200 hrs.; • Breaks some of the ceiling lights located on the upper tier of the Fairweather unit with I.Z.M.; tagging; breaks a ceiling light located in lower tier light with the guitar; and, exposes his buttocks to the staff who were positioned at the window of the secure corridor door connecting the Fairweather unit with the main unit of BYCC; (d) 2200 hrs. - 0230 hrs.; • Urinates in a corner by the staff office; wanders about the Fairweather and Fernie units; tagging in the Fernie unit; plays with the toaster to create more fire; and, he surrenders to the police. 4.

D.P. (a) 2030 hrs. - 2100 hrs.; • Pushes his way into the staff office in an attempt to steal the “mag flashlight”; climbs on top of the cabinets in the kitchen; throws a garbage can onto the ground from his position on top of the cabinets in the kitchen; throws food waste and recycling bins onto the ground; throws paper towels about; climbs down from the kitchen cabinets and attempts to plug the sink located in the kitchen; and, throws contents of the kitchen drawers about the Fairweather unit; (b) 2100 hrs. - 2130 hrs.; • Fills a garbage bag with water; tosses the recycling bin; gives “water bombs” to F.N.; removes the microwave from the kitchen and gives it to I.Z.M., A.F. and I.N.M. who are positioned on the windowsill area; flips a table; breaks cabinet doors in the kitchen; brings other items to the boys positioned on the windowsill, including a full water bag; throws the microwave oven at the wall-mounted television; makes more water bombs; throws a water bomb down the corridor; adds material to the barricade being built in the corridor; and, with I.N.M., breaks a kitchen cabinet; (c) 2130 hrs. - 2200 hrs.; • Kicks at the door to the staff office; breaks a window to the staff office with a fire extinguisher; and, he continues to build the barricade in the corridor; (d) 2200 hrs. - 2330 hrs.; • Wanders about the Fairweather unit and in and out of the staff office; enters the Fernie unit; squirts cleaner onto the floor of the Fernie unit; tries to break down a door with I.Z.M.; meets with the other boys and fist pumps; and, throws a television at a door; (e) 0030 hrs. - 0100 hrs.; • Takes a sandbag from the Fernie unit to the Fairweather unit; (f) 0100 hrs. - 0230 hrs.; • Starts the fire in the Fairweather unit by using the toaster; feeds the fire; and, he surrenders to the police.

C. Injuries to First Responders • The Emergency Response Team (the “ERT”) and other police members were inhaling smoke for approximately 15 minutes

without protective gear; • Members of the ERT, members of the Tactical Team (the “TT”) and members of the dog team suffered minor to moderate smoke inhalation prior to donning protective gear. D. Damage to the BYCC • The youths who participated in the riot destroyed the Fairweather and Fernie units, as well as the adjoining staff office; • The total cost to repair the damage was $150,788; • This cost did not include the cost to replace the desks, computers, televisions, microwave oven, furniture and other miscellaneous items. E.

Response to the Riot • At 2104 hrs., the Royal Canadian Mounted Police (the “RCMP”) were notified that staff at the BYCC required RCMP assistance as some youths had barricaded themselves and a riot was underway; • At 2209 hrs., the ERT was called out to the BYCC; • Several RCMP members arrived at the BYCC but were not in sufficient numbers to safely quell the riot.

They were advised by the Officer in Charge of the RCMP members to await the arrival of the ERT and the TT; • Once the youths participating in the riot began to break the outer facing windows of the Fairweather unit, various RCMP members situated themselves at the area of those windows to prevent any escape attempts; • At approximately 2315 hrs., the first members of the ERT arrived; • At approximately 2345 hrs., other members of the ERT arrived and it was determined that they would gear up to a full “level four” body armor; • Dog team members arrived as well as five members of the TT along with RCMP negotiators; • While the ERT and TT members were formulating an entry and exit plan, there was no ability to contact the youths participating in the riot as all telephone lines to the Fairweather and Fernie units had been disabled by the youths; • Additionally, ERT and TT members received word that the youths had started a fire in the Fairweather unit, so a decision was made to make an entry as a full evacuation of the facility containing the Fairweather and the Fernie units may be required; • Members of the ERT and TT attended at a multipurpose room adjacent to the Fairweather and Fernie units, and the youths participating in the riot were directed to surrender; • At 0215 hrs., members of the ERT breached the door to the Fairweather unit and the barricade in the corridor was taken down in order to start the process of arresting the youths who had participated in the riot.

III. CIRCUMSTANCES RESPECTING I.Z.M.’S ASSAULT CAUSING BODILY HARM (“ACBH”) (FILE 23639-1) [ 15 ] From the CCTV footage, S.G. is observed being escorted by a BYCC staff member down a hallway. Near a set of doors the staff member and S.G. come to a halt. [ 16 ] Suddenly four youths, including I.Z.M., come running at a high rate of speed from a classroom and attack S.G. with blows from their fists. The attack is brief but violent.

Within seconds of the attack, S.G. falls onto the floor where he continues to be attacked by the youths. [ 17 ] After S.G. falls onto the floor, I.Z.M. can be observed kicking or stomping S.G. in the area of his head. [ 18 ] BYCC staff quickly subdued the four youths. It would appear that S.G. was unconscious for a period of time. Emergency Health Services (“EHS”) attended at the BYCC and transported S.G. to the Royal Columbian Hospital (“RCH”) for assessment and treatment. [ 19 ] Medical records of the RCH revealed that S.G. was admitted on September 14, 2016. As a result of various medical assessments, Dr.

Iain MacPhail, in his “Final Report”, made the following diagnoses: 1) traumatic brain injury and small parenchymal bleed, 2) multiple contusions to the face with periorbital hematoma on the right side, 3) undisplaced nasal fracture, and 4) laceration to the scalp. [ 20 ] S.G. remained at the RCH overnight for observation. He was discharged on September 15, 2016.

The treatment plan was for S.G. to follow up for further assessment at the RCH trauma clinic four days later. [ 21 ] There is currently no medical diagnosis that S.G. received any permanent injury as a result of the assault by I.Z.M. and the three other youths. IV. CIRCUMSTANCES RESPECTING D.P.’S THEFT AND ASSAULT WITH A WEAPON (FILE 23639-1) [ 22 ] On November 22, 2016, D.P. went to the Metrotown Mall in Burnaby. He initially went to a store called Arctic Canadian

Diamonds. D.P. spoke to an employee and then left the store, but not before depositing fingerprints on some glass at that store. Those fingerprints were later lifted by the RCMP and identified to D.P. [ 23 ] D.P. then went to the Ann-Louise Jewellers store. At his request, a clerk at the jewellery store presented D.P. with four gold chains for his inspection. He asked the clerk the cost for the chains and was told that they were worth $6,746 retail. [ 24 ] D.P. then grabbed the four chains and fled into the mall. A mall security officer pursued D.P. to prevent his escape.

D.P. reacted by bear spraying the security officer. The security officer was overcome by the bear spray and D.P. was able to escape from the mall. [ 25 ] Crown counsel and counsel for D.P. have jointly submitted that the court ought to impose a Custody and Supervision Order (“CSO”) of four months consecutive to any sentence to be imposed in relation to the riot file. V. PERSONAL CIRCUMSTANCES OF I.N.M., I.Z.M., F.N. AND D.P. A. I.N.M. [ 26 ] I.N.M. was born on [omitted for publication]. He was 17 years old at the time that he participated in the riot.

He will be 18 years old this December. [ 27 ] His youth court history includes six registrations for failure to comply with a disposition, two thefts under $5,000, a possession of stolen property under $5,000, take auto without lawful consent, and three robberies. [ 28 ] I.N.M. was awaiting disposition on the robberies when he participated in the riot.

On August 17, 2016, I.N.M. was sentenced for the robberies to a combination of time credited of six months along with a further open custody order of 200 days to be followed by community supervision for 100 days. [ 29 ] Various reports were prepared for I.N.M.’s sentencing hearing. Those reports include: a Psychosocial Pre-Disposition Report (“PPR”) dated September 5, 2017, prepared by Susan Stapleton, Psychiatric Social Worker; a Pre-Sentence Report (“PSR”) dated September 13, 2017, prepared by Nimrit Gill, Youth Probation Officer; and, a Psychiatric Report (“PR”) dated September 7, 2017, prepared by Dr.

Emlene Murphy. [ 30 ] Both the PPR and PSR confirm that I.N.M. has resided with his grandmother, H.M., since his birth. His mother, C.M., chronically struggled with drug and alcohol addiction issues. Her drug use during her pregnancy with I.N.M. led to the decision that her mother, H.M., would raise I.N.M. [ 31 ] At the age of 6, I.N.M. was apprehended by the Ministry of Children and Family Development (“MCFD”). Over the years that followed, he was placed in eight different foster homes. He was constantly removed from his grandmother’s home due to her personal health and drug issues.

The PPR and PSR described his family life as “tumultuous”. [ 32 ] C.M. has been clean of drugs for approximately ten years. She has attended this sentencing hearing daily. Similarly, I.N.M.’s girlfriend has attended the sentencing hearing daily. I.N.M. has a 1 year old son, N., with his girlfriend. Photographs were filed depicting I.N.M. with his son and with his girlfriend. Those photographs would clearly suggest there is a close bond between the three. [ 33 ] I.N.M. has Aboriginal roots. His Aboriginal heritage comes from his mother’s paternal grandfather. The family identifies as Cree.

Cree is one of the largest groups of First Nations in Canada. I.N.M. is one-eighth Cree and has no status. I.N.M. told his Youth Worker that he does not “identify as Aboriginal and has no knowledge of his culture or traditions”. To date, I.N.M. has not accessed any Aboriginal programs or services. [ 34 ] I.N.M. is described in the various reports as generally physically healthy. That being said, the reports also reveal that he has exhibited traits of Fetal Alcohol Spectrum Disorder (“FASD”) and Attention Deficit Hyperactivity Disorder (“ADHD”).

In April 2015, the Asante Centre completed a medical assessment report which in part stated that “I.N.M. has many issues including learning difficulties, mood problems, ADHD, substance abuse, anxiety, and anger management problems. He has a tendency to have poor compliance to counselling, taking his medication, etc.”: PPR at p. 4. [ 35 ] In addition, I.N.M. was assessed in 2009 for autism and complex developmental and behavioural conditions.

In the assessment report, I.N.M.’s adaptive skills were described as “closer to those of a child between the ages of 7-8 (he was 12 at the time of the assessment)”: Ibid , at p. 4. [ 36 ] From a psychiatric perspective, Dr. Murphy reviewed collateral social and psychiatric histories and determined that I.N.M. suffers from Antisocial Personality Disorder, which could best be addressed by supervision and meaningful employment.

I.N.M. was also diagnosed as suffering from Opiate Use Disorder with a prognosis that when he is released, there is an expectation of relapse: PR at p. 4. [ 37 ] In relation to future risk, Dr. Murphy was of the opinion that I.N.M. has a high risk of future criminal behaviour, as well as a high risk for opiate use: ibid , at p. 4. [ 38 ] I.N.M. began to use marijuana in grade 6 and alcohol in grade 9. He tends to drink until he blacks out. He has also binged on drugs in the past and tends to display hostility when he is under the influence of alcohol and/or drugs: PPR at p. 6. [ 39 ] Ms.

Gill described I.N.M. as largely uncompliant, or poorly compliant, in relation to both community supervision and supervision at the BYCC. She notes that I.N.M. was released on bail in relation to the riot file on April 24, 2017, but was arrested on May 8, 2017, for an alleged assault. It was also noted that at the time of his arrest, I.N.M. was apparently intoxicated and was out past curfew: PSR at p. 6.

[ 40 ] While in custody at the BYCC, I.N.M. has been subject to incident reports for damaging property, threatening staff and peers, inappropriate behaviour, and failing to follow staff directions. I.N.M. also told Ms. Gill that after his room was searched, and his tattoo gun seized on July 19, 2016, that he was subject to a “time out”. After he returned to the Fairweather unit, he talked to the other residents and a decision was made to “do a standoff”.

There was no plan to participate in a riot, rather it “just happened”: ibid , at pp. 6 and 7. [ 41 ] I.N.M. is currently enrolled in grade 11 at the Prince George Youth Custody Centre (“PGYCC”). He would like to return to mainstream schools when he is released from custody. Ms. Gill confirmed that he has been engaging positively in visits with his son and his son’s mother: PPR at p. 7. [ 42 ] While I.N.M. is no longer participating in individual therapy, he continues to attend family counselling at youth forensics with his grandmother.

His grandmother has been actively involved in I.N.M.’s case planning by attending scheduled integrated case management meetings: PSR at p. 6. [ 43 ] Counsel for I.N.M. filed a book of documents containing 14 certificates of achievement. The certificates cover a broad spectrum including academic, vocational and health achievements.

It was noteworthy that on January 27, 2017, I.N.M. was presented with a parenting certificate for children aged 1 to 4 confirming his successful completion of the program. [ 44 ] Counsel for I.N.M. also filed letters of support from his aunt, T.M., his cousin D., his mother, C.M. and his girlfriend, K.S. Collectively they all express faith that I.N.M. can change, and in particular, that he has the capability of being a contributing father to his son, N. [ 45 ] In a letter prepared by I.N.M. for the court, he apologized for his behaviour in participating in the riot.

He stated that he needed to grow up and be a man for his son before it is too late. He knows it will not be easy but asserts that he is up “for the challenge” so that his son can live a jail-free life. B. I.Z.M. [ 46 ] I.Z.M. was born on [omitted for publication]. He was 17 years old at the time that he participated in the riot. He is now 18 years old. [ 47 ] His youth court history includes registrations for a robbery, two failures to comply with a disposition and an aggravated assault. The aggravated assault was committed in November 2015.

Following a guilty plea in April 2016, I.Z.M. was sentenced to serve a secure custody order of 8 months to be followed by an Intensive Supportive and Supervision Order (“ISSO”) for 12 months. [ 48 ] As has been noted, I.Z.M. committed the assault causing bodily harm to S.G. after his participation in the riot but prior to the laying of charges in relation to the riot. [ 49 ] Various reports were prepared for I.Z.M.’s sentencing hearing. Those reports include: a PSR dated September 7, 2017, prepared by Natalie Hoare, Probation Officer; a Psychiatry Report (“PR”) dated August 17, 2017, prepared by Dr.

Michael Stefanelli, Psychiatrist; and, a Forensic Psychosocial Assessment (“FPA”) dated August 1, 2017, prepared by Debbie Day, Psychiatric Social Worker. [ 50 ] The Crown also made reference to various professional reports that were filed in relation to I.Z.M.’s sentencing for the aggravated assault sentencing in April 2016. Reference will only be made to those reports if necessary. [ 51 ] I.Z.M.’s parents are R.N. and F.N. In 2010, F.N. was deported to the Republic of Honduras. R.N. resides in Surrey with her children. [ 52 ] I.Z.M. has Aboriginal roots.

His Aboriginal heritage can be traced back to the Cowesses Nation in Saskatchewan. The reserve is approximately 140 km from Regina and is about 12,000 hectares in size. There are approximately 900 members living on the reserve and 3,000 members living off the reserve. I.Z.M.’s mother is going through the process of applying for status for herself and her children: PSR at p. 2. [ 53 ] Drugs and alcohol do not appear to be a significant feature in I.Z.M.’s lifestyle. It was reported on several occasions while in custody at the BYCC that I.Z.M. used marijuana, Xanax, and methamphetamine.

However, it was also reported that these incidents were relatively minor. Currently, I.Z.M. is described as polite and compliant: FPA at p. 3. [ 54 ] On November 21, 2015, I.Z.M. became involved in a confrontation with T.C. The aggravated assault offence resulted from I.Z.M. punching, kicking and stabbing the victim, who was taken to hospital with serious injuries that required surgery. The puncture wounds included a hole to the complainant’s lung and liver. [ 55 ] On September 14, 2016, I.Z.M. participated in the swarming of S.G. at the BYCC. I.Z.M. and D.P. were the only two charged.

D.P. was sentenced on February 6, 2017, to a six month Deferred Custody and Supervision Order (“DCSO”), followed by an eight month ISSO. [ 56 ] Ms. Hoare reports that I.Z.M. feels sorry about what happened to S.G. As well, he told Ms. Hoare that he became involved in the riot due to “peer pressure” and he “just did it because everyone else was doing it”: PSR at p.6. [ 57 ] Dr. Stefanelli reported that in relation to the ACBH, I.Z.M. told him it was S.G. who provoked the incident by taunting I.Z.M. and three other youths. It was decided that if an opportunity presented itself that they would all assault S.G.

That opportunity came to pass when S.G. was being escorted by a staff member down a corridor at the BYCC when the four assailants were in an adjacent classroom: PR at p. 3. [ 58 ] Dr. Stefanelli also reported that in relation to I.Z.M.’s participation in the riot, that he took responsibility for some of his actions, but he tended to minimize his role. He did not spontaneously express regret or remorse for his behaviours during the riot: ibid , at p. 2.

[ 59 ] I.Z.M. suffers from significant mental health issues. He has been subject to intensive testing. In particular, he was assessed using the Structured Assessment of Violence Risk in Youth (“SAVRY”). Based on the findings of the SAVRY, I.Z.M. is judged to be in a high range of risk to engage in future delinquent and aggressive/violent behaviour: ibid , at p. 8. [ 60 ] I.Z.M. has told Dr. Bodnarchuk, Clinical Psychologist, that he can act impulsively and also regrets the consequences. He cannot stand being disrespected and does not like those that follow others.

He expressed that he has difficulty coping with stress and that the future may be hard for him. He worries about the welfare of his sisters: ibid . [ 61 ] Currently, I.Z.M. denies any worries or anxieties. He is alert and oriented. He is aware that if he becomes involved in further acts of violence that he will be facing a custodial sentence: ibid , at p. 9. [ 62 ] Dr. Stefanelli is of the opinion that I.Z.M. clearly suffers from a serious psychiatric disorder, “most likely schizophrenia”. I.Z.M. is currently being treated with medication and will likely require ongoing prescription medications.

I.Z.M. expressed his agreement to taking prescribed medication: ibid , at p. 10. [ 63 ] Dr. Stefanelli is also of the opinion that due to I.Z.M.’s high risk for engaging in violence, he will require close monitoring within the community. [ 64 ] Due to the seriousness of the aggravated assault of T.C., I.Z.M. became eligible for Special Federal Funding (“SFF”) for up to $50,000 a year to support his rehabilitation. These funds currently allow I.Z.M. access to two ISSO workers along with other case plan supports. [ 65 ] As well, through the SFF, I.Z.M. has been given a vocational assessment. Ms.

Hoare has also been able to contract with an elder so I.Z.M. can have a cultural component to his rehabilitative plan. As of September 2017, a tutor has also been contracted to allow I.Z.M. to focus on completing his education. [ 66 ] I.Z.M. is also being seen by Youth Forensic Psychiatric Services (“YFPS”) in Burnaby. Part of any eventual release plan would include his ISSO workers transporting him to YFPS and supporting him in relation to taking prescribed medication regularly and on time. [ 67 ] While there are plans in place to supervise I.Z.M.’s eventual reintegration into society, Ms.

Hoare expresses concerns that I.Z.M.’s poor community compliance will be a challenge not only for I.Z.M., but for those supervising him. [ 68 ] For example, in relation to the aggravated assault, I.Z.M. was to be released from the BYCC on December 25, 2016, to his Supervision in the Community Order (“SCO”). As part of the release plan, he was to reside with his mother. However, I.Z.M. could not be released on December 25, 2016, due to the ACBH allegation. He was granted bail on the ACBH on January 9, 2017. [ 69 ] After his release, I.Z.M. did not attend as directed by YFPS. A warrant was issued.

Attempts were made to contact I.Z.M.’s mother without success. I.Z.M. was arrested on January 26, 2017. [ 70 ] I.Z.M.’s mother remains committed to her son. She has attended court daily during this sentence hearing. I had the clear impression that she was listening carefully to all of the submissions of counsel and was well aware of the need to ensure that I.Z.M. complied with release conditions. C. F.N. [ 71 ] F.N. was born in a refugee camp in Tanzania on [omitted for publication]. He was 17 years old at the time that he participated in the riot.

He is now 18 years old. [ 72 ] His youth court history includes registrations for two breaches of undertakings, three thefts under $5,000, uttering threats, robbery, attempted robbery and four failures to comply with a disposition. [ 73 ] Various reports were prepared for F.N.’s sentencing hearing. Those reports include: a PSR dated September 15, 2017, prepared by Dan Rai, Probation Officer; a Psychosocial History Report (“PHR”) dated August 29, 2017, prepared by Tonje Olson, Psychiatric Social Worker; and, a PR dated July 18, 2017, prepared by Dr.

Barinder Singh, Psychiatrist. [ 74 ] F.N. is the eldest child of L.B. and V.N. He has three younger sisters. His family immigrated to Canada in 2003. He is a Canadian citizen. [ 75 ] F.N.’s mother recounts that F.N. suffers from an unusually enlarged spleen and that he has required ongoing surgeries to deal with this condition. Otherwise, he is described as being in good health. [ 76 ] By the age of 14, he became resistant to parental directions. He would be absent from school and his home for many days. F.N.’s parents reached out for assistance from MCFD.

Eventually, in 2015, F.N. was placed by the MCFD in a group home after he threatened his uncle with a knife which resulted in a charge of uttering a threat. F.N. was eventually placed on a DCSO in July 2015 for this incident. [ 77 ] Mr. Rai report that F.N. has been in a locked pattern of being in and out of custody over the last two years. He describes F.N. as consistently failing to comply with supervision orders in the community and the BYCC institutional rules: PSR, at p. 4. [ 78 ] F.N. is currently unemployed but would like to find work upon his release.

He does have some experience as a painter with a friend’s painting company. This work would be available for him upon his release, though it would be his intention to explore other employment opportunities. His “dream job” would be to become a music producer. [ 79 ] F.N. began experimenting with illicit drugs when he was 12 years old. He describes himself as a recreational user of mostly

cannabis though he has experimented with some “speed” derivatives. [ 80 ] F.N. was examined by Dr. Singh. F.N. was cooperative throughout the examination. Dr. Singh also had the benefit of receiving and reviewing prior psychological assessments of F.N. in preparing his PR. [ 81 ] It was Dr. Singh’s opinion that there was no evidence of any acute psychiatric conditions. Rather, F.N.’s pattern of behaviour was consistent with a conduct disorder diagnosis coupled with ADHD, inattentive type.

While F.N. does not have any intellectual disability, he will face cognitive and learning challenges as he goes forward: PR at p. 5. [ 82 ] It was Dr. Singh’s further opinion that F.N. meets the criteria for benzodiazepine disorder coupled with a history of alcohol abuse: ibid . [ 83 ] F.N.’s parents express love for their son, but acknowledge his antisocial lifestyle and confirm he does not accept parental controls: PSR at p. 9. [ 84 ] Counsel for F.N. filed his letter of apology. In his letter of apology, F.N. expresses the view that he wants to change his ways.

He notes that his lifestyle is not physically or mentally healthy. He recognizes that he will have to continue counselling and accept prescription medication to address his mental health needs. [ 85 ] Upon his release he wants to find steady employment and improve his education. He also expresses a desire to reconnect with his family. [ 86 ] He agrees that he has made some major mistakes in his life and accepts full responsibility for his actions in participating in the riot. D. D.P. [ 87 ] D.P. was born on [omitted for publication]. He was 15 years old at the time that he participated in the riot.

He is now 16 years old. [ 88 ] His youth court history includes registrations for two robberies, assault, assault with a weapon, three breaches of an undertaking, break and enter of a dwelling, and uttering threats to cause death or bodily harm. The two robberies, uttering threats to cause death or bodily harm, and the break and enter of a dwelling all occurred after the riot while D.P. was subject to an ISSO. [ 89 ] Various reports were prepared for D.P.’s sentencing hearing.

Those reports include: a PSR dated September 14, 2017, prepared by Nimrit Gill, Youth Probation Officer; a FPA dated August 18, 2017, prepared by Marianne Carrion, Community Nurse Clinician; and, a PR dated August 10, 2017, prepared by Dr. Emlene Murphy, Psychiatrist. [ 90 ] D.P.’s parents are C.P. and F.D. D.P. has an identical twin brother, J.P. D.P.’s father is Portuguese. [ 91 ] D.P. has Aboriginal roots. His mother is of Métis heritage. The Métis people originated in the 1700s when French and Scottish fur traders married Aboriginal women, such as the Cree and Ojibway.

Their descendants formed a distinct culture, collective consciousness and nationhood in the Northwest: PSR at p. 2. [ 92 ] Ms. Gill reports that D.P. is not connected to his Métis heritage and is not interested in accessing cultural services: ibid . [ 93 ] Historically, D.P.’s mother has struggled with addiction issues, including alcohol and prescription pills. Her struggle with her addictions resulted in significant disruptions in the household, including domestic violence. D.P. described a chaotic upbringing and was aware that his mother had addiction issues. That being said, D.P. told Ms.

Gill that he had many positive memories from his childhood, including having a good relationship with his grandmother, D.M.: ibid . [ 94 ] D.P.’s mother is now clean and sober. She attends counselling regularly and is committed to her sobriety: ibid . D.P.’s parents are committed to his rehabilitation. They have attended D.P.’s sentencing hearing daily. Similarly, D.P.’s grandmother is also committed to his rehabilitation. She has attended on several days of D.P.’s sentencing hearing.

Overall, D.P.’s family has been actively involved with youth agencies in their son’s case planning. [ 95 ] D.P. is currently working through grade 10 while in custody. He has been participating in programs as permitted and has met with a drug and alcohol counsellor. [ 96 ] Ms. Gill reports that D.P. has been in almost continuous custody for the past 15 months leading up to September 18, 2017. During that time frame, D.P. has acquired over 20 incident reports while in custody. Due to behaviour problems, D.P. was confined to the separate confinement area of the BYCC.

On several occasions he was also transferred to the PGYCC with the hope that his behaviour would improve: ibid , at p. 7 and FPA at p. 7. [ 97 ] Ms. Gill reported that D.P.’s response to community supervision has been poor. [ 98 ] In November 2016, D.P. was released from the PGYCC on a SCO and within short order was in breach of his release plan after his mother had reported that D.P. had consumed alcohol and his whereabouts were unknown. D.P. eventually turned himself in on December 12, 2016: ibid . [ 99 ] On December 24, 2016, D.P. was again released on a SCO.

He was arrested on January 3, 2017, for robbery and uttering threats to cause death or bodily harm. He has remained in custody since that date: ibid . [ 100 ] Currently, D.P. is physically healthy. He reports that the drug he uses most frequently is Xanax. He also reports using MDMA, an amphetamine. He reports experimenting with cocaine, crystal methamphetamine, mushrooms, and Percocet: PR at p. 3.

[ 101 ] Dr. Murphy met with D.P. and also had the opportunity to review psychological assessment histories for D.P. prior to preparing her PR. It was Dr. Murphy’s diagnosis that D.P. has a severe conduct disorder and a moderate substance abuse disorder: ibid , at p. 7. [ 102 ] D.P. was consistent with the other youths involved in the riot in reporting that there was no plan to riot, but rather to embark on a “standoff” with the staff at the BYCC, following the search and seizure of contraband located in the Fairweather unit.

He identified that it was the BYCC that was the victim of the riot and that he felt truly sorry. He was aware that the riot resulted in the BYCC incurring significant financial cost: PSR at p. 8. [ 103 ] D.P. has little, if any, memory of the events surrounding the theft from Ann-Louise Jewellers and the bear spraying of the security officer, as he had been “popping” Xanax all day. He reports that the victims of his actions include the person that he bear sprayed and the clerk at the jewellery store: ibid . [ 104 ] D.P. wants to be given the opportunity to reconnect with his family.

His family has expressed that they would like D.P. to be surrounded by his family and to be given a chance to be part of society. In particular, D.P.’s parents want him to reconnect with his twin brother. They would also like to see D.P. enrolled in programs to assist in his rehabilitation: ibid . VI. VIEWS OF THE NATIVE COURT WORKER [ 105 ] Flora Raynes is a Native Court Worker at the Robson Square courthouse. She met with I.N.M., I.Z.M. and D.P. She also met with family members of the three youths. [ 106 ] She provided the court with an oral report in relation to I.N.M., I.Z.M. and D.P. on September 22, 2017.

In her oral report, she reviewed the Aboriginal history for each of the youths gathered from her interviews with them and input from family members. [ 107 ] Ms. Raynes provided the court with a useful

summary for each of the youths in which she addressed Gladue factors, spiritual and cultural healing factors, emotional healing factors, and physical and community factors in relation to each of the youths: A. I.N.M. 1. Gladue Factors: • I.N.M.’s substance abuse as well as the substance abuse in his immediate family; lack of educational opportunities; dislocation and loss of identity resulting in I.N.M. having no knowledge of Métis culture, dances and songs and fiddle music; instability in housing; and, repeated periods of incarceration; 2.

Spiritual and Cultural Factors: • I.N.M. would attend Sweats if offered; he expressed a desire to become involved in the BladeRunners program where he would receive courses in becoming a warehouseman.

The courses are one month in duration and would provide I.N.M. with the opportunity to receive certification in areas such as forklift operation; • Tony Armistead of the BladeRunners program would be I.N.M.’s Aboriginal case manager and he would assist I.N.M. in making short-term and long-term plans; • I.N.M. expressed an interest in attending Aboriginal parenting classes which could be available after his release; 3. Emotional Healing: • I.N.M. agreed to attend alcohol and drug counseling with Karen Longmuir of the Native Court Workers Counseling Association of British Columbia; 4.

Physical and Community Factors: • I.N.M. expressed an interest in becoming a warehouseman; it was suggested that to increase the chances of I.N.M.’s success in the community, the court ought not to impose an onerous curfew. B. I.Z.M. 1. Gladue Factors: • I.Z.M.’s substance abuse as well as the substance abuse in his immediate family; poverty; family breakdown; residential school history; and, loss of cultural and ancestral knowledge; 2.

Spiritual and Cultural Factors: • I.Z.M. expressed some interest in attending Sweats and smudges; the Native Liaison Officer at the BYCC confirmed that I.Z.M. had attended a smudge ceremony in August 2017; and, I.Z.M. was encouraged to speak with his grandmother about his connection to the Cowessess First Nation; • I.Z.M. expressed a desire to participate in the BladeRunners program in the off-season when he was not roofing with Rai’s Roofing; 3. Emotional Healing: • I.Z.M. wants to continue with alcohol and drug counseling with Karen Longmuir; he can live with his mother and his siblings in

what is described as a ‘spacious house’; his mother has been clean of illicit drugs for several years and is self-described as “growing stronger”; and, I.Z.M. is willing to connect with the Aboriginal Mental Health Liaison, Rohit Kampo to address mental health concerns; 4.

Physical and Community Factors: • I.Z.M. wants to continue working with Rai’s Roofing; his mother confirmed that I.Z.M. could attend day classes at Invergarry Adult Learning in Surrey; and, I.Z.M. expressed an interest in martial arts and his grandmother located a martial arts program in Surrey which teaches respect, patience and confidence called Team Bad Boy Outreach which would be available to him; C. D.P. 1.

Gladue Factors: • D.P.’s substance abuse and the substance abuse in his immediate and extended family; dislocation from his Aboriginal community; residential school history; and, loss of cultural and ancestral knowledge; 2. Spiritual and Cultural Factors: • D.P. expressed an interest in attending the Young Bears Lodge to learn more about his heritage; he has attended Sweats, smudge ceremonies, pipe ceremonies; and, his mother has become much more open to her Aboriginal culture as she has been attending at the Fraser Regional Aboriginal Friendship Centre in Surrey; 3.

Emotional Healing: • D.P. has a very supportive family who will welcome him home upon his release; the Young Bears Lodge program has a small number of residents and has counselors on property; D.P. is willing to connect with the Aboriginal Mental Health Liaison, Rohit Kampo, to address mental health concerns; he is willing to do a restorative justice program; and, D.P. self-reports that he is no longer taking Xanax; 4. Physical and Community Factors: • Due to his young age, D.P. should focus on reconnecting with his family; becoming involved in a program such as the Young Bears Lodge; and, focus on his sobriety.

VII. VICTIM IMPACTS A. Victim Impacts Resulting from the Riot [ 108 ] A Victim Impact Statement (“VIS”) was filed by Anita McConnell, Director of the BYCC. In her VIS, Ms. McConnell addressed the impact of the riot on the staff at the BYCC. In part, she had this to say: Many staff and residents were impacted negatively and in a sustained manner, as a result of this purposeful, prolonged and thoughtless act of violence last summer. People were significantly frightened and discouraged.

This incident went way further than a fight or a disagreement and affected many people, many more than who were just present that night. ( Ibid , p. 12, lines 32-40) The parents, the caregivers, the guardians of all the youth at the custody centre were fearful and worried for their kids. We received numerous phone calls from parents, guardians, requesting information about their children. Other youth justice staff, social workers, support workers, were extremely worried about what was happening for their colleagues, their friends, and the youth in their care.

A number of staff were unable to make personal commitments such as attending a funeral, as they were needed in response to the disturbance. These are just a few examples of how the incident impacted the whole youth justice system in British Columbia. Following the incident, two professional debriefing sessions were scheduled and attended by staff involved and others feeling the emotional impact. There was also one-on-one counselling offered to all residents. Many took advantage of the opportunity to discuss their feelings and their fears.

One staff went on sick leave, following the incident, and was off for 254 hours in total between July 19th and September 13th, 2017.

Two other staff members left the work site and made WorkSafe B.C. claims, citing negative mental health effects from the incident, one for a total of 400.5 hours, between July 19th and November 12th, and another for 224 hours between July 19th and September 6th. ( Ibid , p. 13, lines 5-38) Several young people had to be sent to the Prince George Youth Custody Centre, contrary to ideal case manager practices, simply because there was no room to house them at the Burnaby Youth Custody Centre, due to the destroyed units.

This was distressing for them to be away from their families and other supports. (Transcript, September 19, 2017, p. 14, lines 6-13) [ 109 ] Kim Underwood was one of the Youth Supervisors present at the commencement of the riot. She provided a VIS to Ms. Gill, which was incorporated into D.P.’s PSR. In part she had this to say: The night of July 19, 2016, was truly a nightmare unraveling in front of me. The fact that it was targeted at staff and planned makes it hard for anybody to go back to the way it was. It was a career changing event for me personally….

After 10 years of service, I consider myself to be a very skilled caring and supportive member who can no longer be there for other youth since the treatment we received from these boys: at p. 9.

B. Victim Impacts Resulting from D.P.’s Assault and Theft from Ann-Louise Jewellers [ 110 ] The area manager for Ann-Louise Jewellers provided a VIS to Ms. Gill which was also incorporated into D.P.’s PSR. In the VIS the area manager had this to say: This incident left my team of that day in a nervous state, as the tactic of grab and run manipulates the trust of a salesperson. Our salesperson is there to provide service to individuals who we assume are legitimate buyers. The loss of inventory was substantial as 4 gold chains totaling $6,746 retail were stolen.

The salesperson who dealt with the thief was a long time staff, having been our employee for over 10 years. She was shaken from the incident for several days after. She subsequently resigned from her position several months later: at p. 9. VIII.

POSITION OF THE PARTIES [ 111 ] The Crown and the counsel for the four youths made reference to numerous cases contained in books of authorities that have been filed relating, in particular, to ranges of sentences in riot cases and calculation of time served under the Youth Criminal Justice Act (“YCJA”) . [ 112 ] I have reviewed all of the books of authorities that have been filed in this hearing. Similarly, I have reviewed all of the transcripts of the evidence and the submissions presented in this hearing. [ 113 ] The submissions of the Crown and counsel for the four youths ranged over four days.

For ease of reference, I have partially compressed the position of the parties into

summary form. [ 114 ] In my analysis, I only cite authorities referenced by counsel where it is necessary and appropriate. A. The Crown [ 115 ] The Crown submits that this court should consider the imposition of a CSO in the range of 12 to 24 months for each of the youths, pursuant to s. 42(2)(

n) of the YCJA . Following completion of the CSO, that D.P. should receive a one year ISSO, pursuant to s. 42(2)(

l) of the YCJA . Due to their ages, I.N.M., I.Z.M., and F.N. should receive Probation Orders pursuant to s. 42(2)(

k) of the YCJA . [ 116 ] The Crown also seeks ancillary orders that the youths provide a DNA sample pursuant to s. 487.051(1) of the Code and a two- year weapon prohibition pursuant to s. 51(1) and (2) of the YCJA . 1. The Riot, Mischief and Arson File 23664-1 a.

Overview • The participation in the riot by the four youths is extremely serious and each of them bear a high degree of responsibility for their behaviour; • I.N.M. and D.P. bear greater responsibility than I.Z.M. or F.N., due to their active involvement in the riot, including their involvement in relation to the arson and mischief to property; • While the YCJA requires the court to look at all alternatives to a custodial sentence, in the particular circumstances surrounding the riot there are no reasonable alternatives to a significant period of custody; • Factors which militate against reasonable alternatives to custody include: (1) the seriousness of the offences; (2) the serious and recent criminal records of each of the youths; (3) all of the youths have had difficulty complying with community supervision in the past;

(4) F.N. breached a court order and D.P. committed offences relating to the theft from Ann-Louise Jewellers after both youths had been released into the community following the riot; and, (5) psychiatric and psychological reports for I.N.M., I.Z.M. and D.P. opine a high risk to reoffend upon release, and a moderate to high risk to reoffend in relation to F.N. upon his release; • The legion of sentence cases relating to the Vancouver Canucks Stanley Cup riot in 2011 establish that participation in a riot is, by its very nature, a serious offence and a serious threat to orderly society; • For adult offenders, a jail sentence may be appropriate even for a first-time youthful offender who participates in a riot; • Section 38(1) of the YCJA requires that the youths be accountable for their conduct.

Pursuant to s. 38(2)(f), and subject to the proportionality principle of sentencing, the court should denounce the unlawful conduct of the youths with the imposition of a custodial sentence. This type of sentence would also operate as a deterrent to the youths reoffending in the future. b. Mitigating Factors • It was mitigating that the youths all entered guilty pleas to the various offences relating to the riot; • The youths enjoy the support of both immediate and extended family members; • The Aboriginal heritage of I.N.M., I.Z.M. and D.P. can be taken into account as a mitigating factor. c.

Aggravating Factors • The riot erupted in a custodial facility housing 48 detained youths with 19 staff on duty and there were also contractors and volunteers at the BYCC that evening;

• This was an extremely serious incident that put everyone at substantial risk, particularly so when A.F., I.N.M. and D.P. collectively started the fire and added fuel to the fire in the Fairweather unit; • The riot led to the complete lockdown of the BYCC; • While the riot may not have been planned, the youths certainly planned the confrontation with the staff at the BYCC, including heating up water in water bottles and climbing up onto window ledges and onto the cupboards in the Fairweather unit; • The youths stubbornly resisted attempts by the staff at the BYCC to defuse the situation in a calm and therapeutic manner; • The youths verbally threatened, challenged, and intimidated BYCC staff causing them to fear for their safety as noted in the two VISs; • Youths in an adjoining custodial unit had to be evacuated for their safety which caused additional stress and instilled fear in the BYCC staff; • The youths caused considerable damage and the total repair cost was $150,788, without taking into consideration the replacement of desks, computers, televisions, microwaves, furniture and other miscellaneous items; • The riot required the deployment of many police officers and other first responders, many of whom were off-duty at the time of deployment; • Some of the first responders suffered from smoke inhalation; and, • I.N.M. and F.N. failed to comply with their community supervision while on bail.

I.Z.M. committed the ACBH two months after the riot. D.P. committed the theft from Ann-Louise Jewellers and the assault with a weapon when he was on community release. 2. D.P.’s Theft and Assault with a Weapon File 23695-1 [ 117 ] The Crown and Counsel for D.P. jointly submit that a four month CSO to run consecutively to any sentence imposed in relation to the riot file is a fit sentence. [ 118 ] I will deal with the appropriateness of the joint submission at the disposition

section of this ruling. 3. I.Z.M.’s Assault Causing Bodily Harm File 23639-1 [ 119 ] The Crown submits that the swarming attack on S.G. by I.Z.M. and three other youths is very serious. The Crown describes the attack as an “unprovoked, vicious attack by four youths.” The attack was planned in advance apparently as “payback” relating to an earlier incident involving S.G. and H.J., one of the four youths involved in the attack. [ 120 ] The Crown submits that I.Z.M. had “absolutely no reason to involve himself in this attack.

He had no particular quarrel with the victim at the time.” Further, none of the attackers complied with Correction Officers’ commands that they stop the attack. [ 121 ] As a result of the attack, S.G. sustained a traumatic brain injury, along with a nasal bone fracture.

It was noted by the Crown that at the time I.Z.M.’s co-accused was sentenced in February 2017 to a 6 month DCSO, to be followed by an 8 month ISSO for the assault causing bodily harm to S.G., the full extent of the injuries to S.G. were not known. [ 122 ] The Crown submits that it is an aggravating factor that the attack on S.G. takes place in a custodial setting. It is a further aggravating factor that I.Z.M. was serving a sentence for aggravated assault at the time of the attack on S.G. 4. Credit for Time Served for I.N.M., I.Z.M., F.N. and D.P. [ 123 ] The Crown submits that while s. 38(3)(

d) of the YCJA requires that a court shall take into account pre-sentence custody, that the circumstances of the offences and the personal circumstances of the four youths would not justify a credit of 1.5:1 for time served. Rather, all four of the youths require that their ongoing rehabilitation ought to be emphasized which will best be met by a credit of 1:1 for time served. 5.

Asserted State Misconduct [ 124 ] The Crown further submits that the actions taken by the staff at the BYCC in dealing with the riot met established protocols set out by the Office of the Provincial Director of Youth Justice, “Security and Control in Emergency Situations”: [Exhibit 8]. Any suggestion that the staff at the BYCC somehow misconducted themselves by commission or omission is without merit and not a factor that would justify a finding of State misconduct. B.

The Defence [ 125 ] Counsel for the four youths submit that the range of sentence should be much closer to a total sentence of time served if each of the youths is granted credit for time served at a ratio of 1.5:1. [ 126 ] It is not disputed that the four youths should be subject to the imposition of a probation order or an ISSO upon their release from custody. [ 127 ] Counsel for the four youths further submits that the commission of the riot in the context of a custodial setting is not an aggravating factor.

1. I.N.M. [ 128 ] I.N.M. submits that he should be sentenced to a 6 to 9 month open CSO, less a credit of 1.5:1 for time served.

I.N.M. further submits that in light of his progress in custody, that a 6 month ISSO would be appropriate. [ 129 ] His position to justify this sentence range is summarized as follows: • His mother has been clean and sober for 8 years and she is keen to have I.N.M. come home where he can live with his girlfriend and his young son; • During family visits, I.N.M. is described as interacting positively with his son; • While he does not identify as Aboriginal, he nonetheless has suffered from socioeconomic disadvantages arising from his Aboriginal status; • He has been doing exceptionally well in custody at the PGYCC.

In particular, he has received very good grades, as noted in his grade 10 report-card from PGYCC; • As noted at paragraph 43 of this ruling, he has received a significant number of certificates of achievement covering a broad spectrum of skills; • He participates in extracurricular school activities and is an accomplished athlete; • He has completed his level II certification for forklift skills; • He has reached out to a Native Youth Court Worker and with the assistance of the Native Youth Court Worker, he would like to attend the BladeRunners Program; • He has worked his way up to a status level 4 as a result of his good behaviour at PGYCC; • There was no premeditation or planning to cause a riot; rather, he was upset that after contraband was found in his room, his status level 4 was reduced to status level I.

The plan was to protest his status level reduction with the hope that his status level would be increased; • He denies being one of the ringleaders. Rather, it was a joint enterprise that simply got out of hand; • He denies starting the fire in the Fairweather unit, but does admit to feeding the fire with fuel; • In his PDR, he expresses his remorse over the damage he caused and is “sorry” for what happened. 2.

I.Z.M. [ 130 ] I.Z.M. submits that he should be sentenced to the equivalent of a 12 month CSO, less a credit of 1.5:1 for time served to be applied against the custodial component of the CSO. [ 131 ] His position to justify this sentence range is summarized as follows: • The fundamental purpose contained in s. 38(1) of the YCJA ought to be emphasized to promote his rehabilitation and reintegration into society; • S.G.’s diagnosed traumatic brain injury encompasses a range of symptoms.

There are no reports suggesting ongoing medical concerns including any evidence of permanent brain damage for S.G.; • S.G. was unconscious for a short period of time; • I.Z.M. became involved in the attack because S.G. had used inappropriate language directed at I.Z.M. and the other three youths just prior to the attack; • The court ought to consider the parity principle in sentencing I.Z.M. for his involvement in the attack on S.G.; • In relation to his involvement in the riot, the Crown position is out of line with youth riot cases, largely arising from the Vancouver Canucks riot in 2011; • His Aboriginal status; • He has a complicated mental health history which will require ongoing treatment; • He is forthright and compliant with his doctors and his doctors’ recommended course of treatments, including taking prescribed medication; • He understands there will be consequences for further violent behaviour; • He has been in custody for nearly two full years other than the 20 days when he was released on January 9, 2017, and then rearrested on January 26, 2017; • He currently has available SFF for up to $50,000 per year to support his rehabilitation, including access to two ISSO workers;

• While there have been compliance issues while I.Z.M. has been in custody, current reports confirm that with his readmission into school, he is pleasant to work with and is participating well; • His status level at BYCC has moved from level 3 to level 4; • He agreed to participate in a standoff with BYCC staff.

He was not involved in any plan to start a riot; • He did not confront correction staff with derogatory language prior to the commencement of the riot; • His participation in the riot was at the lower end; • He had nothing to do with the arson during the course of the riot at the BYCC; • The riot was contained to the Fairweather and Fernie units, unlike the Vancouver Canucks riot which spread through the downtown core of Vancouver; • While some of the staff at BYCC were traumatized by the riot, the scale and the scope of those traumatized cannot be compared to the thousands of people who were traumatized during the course of the Vancouver Canucks riot; • The scale and the scope of the damage to BYCC is a less aggravating factor in comparison to the scale and the scope of damage to the city of Vancouver resulting from the Vancouver Canucks riot; • I.Z.M.’s guilty pleas are a clear indication of his regret and remorse; • A credit of time served based upon a 1.5:1 ratio is more consistent with the principles expressed in s. 38(2)(

d) and (

e) of the YCJA . 3. F.N. [ 132 ] F.N. submits that he should be sentenced to a 6 to 8 month CSO less a credit of 1.5:1 for time served. [ 133 ] His position to justify this sentence range can be summarized as follows: • He was born in a refugee camp in Tanzania where his mother and father met.

His parents were in the refugee camp to escape ethnic conflict in Burundi; • He requires ongoing medical treatment in relation to an enlarged spleen; • He was bullied during his early years at school; • He has been diagnosed with an ADHD medical condition and he accepts prescribed medication to address his condition; • While in custody he has been making satisfactory progress in school; • He has been actively involved in one-on-one counseling; • He intends to improve his education and hopes one day to be involved in the music industry; • His mother attended each day of the hearing and is willing to have him back home with the rest of the family upon his release from custody; • He accepts responsibility for participating in the riot, though he denies that there was any plan to start a riot. 4.

D.P. [ 134 ] D.P. filed extensive written submissions on the sentence which were supplemented by his oral submissions. [ 135 ] D.P. submits that he should receive an 8 month CSO in relation to his participation in the riot, arson and mischief to property. He jointly submits with the Crown that he should also receive a consecutive 4 month CSO in relation to the theft and assault with a weapon charges. Time credited should be based on a ratio of 1.5:1 for time served to be deducted from the one year global sentence. [ 136 ] He does not dispute that an ISSO ought to be imposed.

He submits that a one-year ISSO would be appropriate. [ 137 ] His position to justify this sentence range is summarized as follows: a. Mitigating Factors • He is 16 years old; • He has the very strong support of his parents, who reside with his twin brother in Surrey. His parents and his maternal grandmother have attended each day of the hearing; • His mother is clean and sober of substance abuse; • He has a school to go to in Surrey; • He is Métis of Cree First Nation heritage and is only now discovering his Aboriginal heritage;

• He has a diagnosed severe conduct disorder with a moderate substance abuse disorder that requires supervision; • In relation to the riot, it was not planned or premeditated. It developed following a “standoff” with staff at the BYCC; • He has entered guilty pleas as a clear indication of his remorse. b.

Aggravating Factors • He has an unenviable criminal record; • He bear sprayed the security officer as he fled Metrotown with the gold chains he stole from Ann-Louise Jewellers; • He was responsible for lighting the fire at the BYCC, which he describes as “incredibly dangerous”, which if it got out of control,“could have endangered the occupants”. c.

Range of Sentences in Riot Cases [138] Generally, the case law establishes a starting point for youths participating in a riot in the range of 18 months’ probation. [139] Many adults who were involved in the Vancouver Canucks Stanley Cup riot received ranges of sentences which includedprobation, Conditional Sentence Orders and jail depending on the circumstances. d.

Credit for Pre-Sentence Custody [140] While recognizing that the court has the discretion on how to apply credit for pre-sentence custody, that the court ought tofollow the general rule of thumb of credit based on a ratio of 1.5:1 established by the Supreme Court of Canada (the “SCC”) in R. v.Summers, 2014 SCC 26. e. State Misconduct Deserving of a Reduction in Sentence • D.P. relies on the SCC decision in R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206 for authority that State misconductmay be a relevant mitigating factor to warrant a reduction in sentence; • In particular, the staff on duty at the BYCC failed to follow protocols in riot situations as established by the Office of theProvincial Director of Youth Justice [Exhibit 8]; • There were 12 guards that entered the Fairweather unit prior to Grant Bunker, who was the Senior Youth Supervisor on duty at theBYCC, calling a “Code Red” with a lockdown of the unit.

The guards “nonchalant” approach amounted to a failure: 1) To isolate the riot or disturbance; 2) To contain the riot or disturbance; and, 3) To terminate the riot or disturbance as required by policy; • There was no attempt to wait the youths out. The guards attempted to talk the youths down, but after a “shockingly short period” of3 minutes and 11 seconds, they were ordered out by Mr. Bunker; • The actions of the guards and Mr.

Bunker, by leaving the youths “to their own devices” while locked down in the Fairweather unit,amounts to State misconduct which should attract at least a token or nominal reduction in sentence. IX. LEGAL FRAMEWORK A. In the Context of the YCJA [141]

Section 3 of the YCJA, under the heading of Declaration of Principle, reads in part as follows: 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 ofresponsibility 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 thecircumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminishedmoral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level ofmaturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time. … [ 142 ] The principle of accountability contained in s. 3(1)(

a) is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. [ 143 ] Furthermore, the provisions of the YCJA establish that the imposition of custody is a last resort. In R. v. A.J. , 2013 BCPC 44 , at para. 52 , Giardini, PCJ notes: 52 Furthermore, the provisions of the YCJA , start from the position that when sentencing young persons jail is a last resort.

Section 38 (1) sets out the purposes and general principles designed to hold young persons accountable for their offences through the imposition of "just sanctions that have meaningful consequences" for the young person, that promote his or her rehabilitation and reintegration into society thereby contributing to the long term protection of the public. Section 38 (3) provides that 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; (

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. [ 144 ] Additionally, s. 39(1)(

a) provides: 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; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 145 ] Sections 39(2) and (3) emphasize the need that a youth justice court shall not impose a custodial sentence unless there are no other reasonable alternatives that are available. [ 146 ] By operation of s. 38(2), the sentence that the court imposes must not result in a greater punishment than that which be appropriate for an adult convicted of the same offence committed in similar circumstances.

The sentence must be similar to sentences imposed in the region on similar youths found guilty of the same offence committed in similar circumstances. [ 147 ] It is also clear that the principles and provisions of the YCJA are different in a material nature from those that are applied to adults. It is clear that the criminal justice system in relation to youth is separate from the criminal justice system for adults: R. v. S.P.G ., [2012] B.C.J. No. 1889 . B. In the Context of Section 42(2)(

n) under the YCJA [ 148 ] The maximum custodial sentence that is available under the YCJA is 3 years where the offence carries a maximum penalty of life imprisonment or where more than one youth sentence is imposed with respect to different offences. The continuous combined duration of those youth sentences shall not exceed 3 years: ss. 42(2)(

n) and 42(15) YCJA . [ 149 ] The maximum sentence for I.N.M. and D.P. is 3 years based on the fact that arson ( s. 433 (

a) of the Code ) carries a maximum penalty of life in prison. As well, D.P. is being sentenced in relation to the theft over $5,000 and assault with a weapon which permits a three-year combined custodial sentence. [ 150 ] The maximum sentence for I.Z.M. is 3 years. The charge of mischief over $5,000 and ACBH each carry a maximum penalty of 10 years. The fact that I.Z.M. is being sentenced for separate offences at the same time allows the court to impose a combined sentence to a maximum of 3 years. [ 151 ] The maximum sentence for F.N. is 2 years. That is based on the fact that participating in a riot has a maximum penalty of 2 years

and the offence of mischief over $5,000 has a maximum penalty of 10 years. C. In the Context of Participating in a Riot [152] In R. v. M.J.D. and S.P.M., 2013 BCPC 52, at paras. 91 and 95. Giardini, PCJ. characterized the nature of a riot as follows: 91 The case law cited by the Crown and not disputed by the defence clearly establishes the following: a. Participation in the June 15 riot is a serious offence. b. Rioting, by definition, disturbs the peace of the community tumultuously.

It is public disorder that has escalated to the point of actualor threatened force or violence, and that causes people of reasonable firmness and courage to be alarmed; see: s. 64 of the Code, R. v.Brien, (NWT SC), [1994] N.W.T.R. 59 (N.W.T.S.C.). c. Participating in a riot, by its very nature, is a serious threat to an orderly society: see R. v. Loewen (1992) (BC CA),75 C.C.C. (3d) 184 (B.C.C.A.). d. Participation in a riot, as defined in s. 64 of the Code: does not require the commission of separate criminal offences. One can beculpable of participating in a riot by "word, deed or other manner", R. v.

Brien, at para. 38, so long as the person's actions "contributed tothe excitement, fervor, intimidation and dangerousness" of the situation: see R. v. Loewen at para. 45. e. In R. v. Dickinson, 2012 BCPC 40, the first rioting case dealing with the 2011 Stanley Cup riot, Judge MacLean set out the analyticalframework for sentencing an accused for participating in a riot. That framework was adopted by Judge Wingham in R. v. B.G. (28 August2012), Vancouver Registry 22591-1-V, unreported, at paras. 12 and 13, but modified to address the principles of youth sentencing.

Thefactors to consider are: 1. the offender's degree of participation, 2. context of the riot generally, including the impact on the victims, 3. the offender's personal circumstances; and 4. the principles of sentencing set out in the YCJA. D. In the Context of an Institutional Riot [153] I.N.M., I.Z.M., F.N. and D.P. have all pled guilty to participating in a riot at the BYCC contrary to s. 65 of the Code. Themaximum potential penalty in adult court is 2 years in prison. [154] I.N.M. and D.P. pled guilty to causing damage by fire at the BYCC during the course of the riot contrary to s. 433(

a) of theCode. The maximum potential penalty in adult court is life in prison. [155] I.N.M., I.Z.M., F.N. and D.P. have all pled guilty to committing mischief over $5,000 by wilfully damaging the BYCC duringthe course of the riot contrary to s. 430(3) of the Code. The maximum potential penalty in adult court is 10 years in prison. [156] Many of the authorities referenced by both the Crown and counsel for the youths related to sentencing cases for youths whoparticipated in the Vancouver Canucks Stanley Cup riot in 2011.

In many instances, youths who were charged with, and pled guilty to,participating in the 2011 Stanley Cup riot had no criminal records and were of prior good character and reputation. [157] It was not an uncommon submission during sentencing hearings that youths being sentenced for participating in the 2011Stanley Cup riot were impacted by varying degrees of intoxication. It was also not an uncommon submission that the youthsspontaneously participated in the riot as a “mob mentality” spread through the thousands of revellers in the downtown core ofVancouver: see for example R. v. C.M.B., [2013] B.C.J.

No. 501, at para. 99. [158] The vast majority of the sentences that were imposed on youths who were charged with and pled guilty to participating in the2011 Stanley Cup riot resulted in noncustodial sentences. [159] It would be a fair observation that there were various dynamics in play which fuelled the 2011 Stanley Cup riot. Those dynamicsinclude but are not limited to: the thousands of revellers compressed at the Live Site; favourable weather; availability of alcohol; and,under-resourcing of police. [160] Institutional riots in a secure prison facility have a different dynamic.

In most incidences, including the riot at the BYCC,inmates are dissatisfied with some aspect of their incarceration and take it out by rioting and damaging property: see for example, R. v.Anderson, [2005] B.C.J. No. 2685, at para. 15 (“dissatisfaction about the food”) and R. v. Nguyen, [2008] B.C.J. No. 2697, at para. 4(inmates’ “took exception” to a Correctional Officer’s direction to isolate an inmate). [161] In cases involving riots in an adult correctional facility, general deterrence is the paramount factor taken into account by asentencing court: Anderson, supra, at para. 48.

The range of sentence to be imposed will depend upon the degree of culpability of theoffender. Those who assume a leadership role will attract a more severe sentence than those who participate to a lesser degree: Ibid. atparas. 49 and 50. [162] By its nature, those who participate in an institutional riot in a secure facility leading to the destruction of property are engagedin an “insur

[…]