R. v. B.C. Date:, 2015 BCPC 115

Citation: R. v. B.C. Date: 20150402 2015 BCPC 0115 File Nos: 8456-6-B; 8456-7-B; 8456-8-BA; 8456-9-BA Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Division REGINA v. B.C . REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.SMITH Youth Matter - Restriction on Access s. 118 & s.110 YCJA Crown Counsel: K.J. Dodds Defence Counsel: B. Weststrate Place of Hearing: Kelowna , B.C.

Date of Hearing: April 2, 2015 Date of Judgment: April 2. 2015 [ 1 ] THE COURT: Before me today in Youth Court for sentencing is B.C. He has pled guilty to multiple offences on four different informations. All of the offences are breach related, be it breach of probation or breach of undertaking. [ 2 ] Crown seeks a deferred custody order followed by an intensive support and supervision order with a plan of having B.C. attend at a residential camp. [ 3 ] A legal issue has arisen with regards to the jurisdiction of the court to impose a deferred custody order.

Everyone agrees that, be it deferred or not, it is still a custody order, even though if I impose it today, he will be getting out today. [ 4 ] Reference is made to s. 39(1)(

b) of the Youth Criminal Justice Act , which reads: 39.

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

section 42 . . . unless . . . (

b) the young person has failed to comply with non-custodial sentences; [ 5 ] Crown alleges that he has multiple non-custodial sentence breaches in the past. Defence submits that, while there have been multiple breaches, it was all under one sentence. In other words, the Crown says it was under one order, but it was multiple sentences. Defence argues it was all under one sentence. So let me now go back to look at his criminal record. [ 6 ] The first conviction was in July 2013 for two separate theft unders. He was given a seven-month conditional discharge.

A year and a bit later, on the 20th of November, 2014, he pled guilty to multiple matters on multiple different files. One was an assault, another involved multiple breaches of recognizance. I should say breaches of undertaking or recognizance. There were seven of those. They all had different offence dates.

The offence dates of the breaches were in 2014, the 11th of October, the 19th of October, the 27th of September, the 9th of October, the 30th of October, the 28th of October, so they were all closely related in time, but they were all particular breaches that were distinguishable, such that guilty pleas were recorded on all seven of these breaches. [ 7 ] Subsequent to that, as recently as the 3rd of February when he was at a group home in Cranbrook, he was sentenced on an uttering criminal threat under s. 264, and that was dealt with by way of the jail time served of eight days. [ 8 ] So the matters before me today are that on -- let me back up.

We have that 20th of November, 2014, probation order made by Judge Shaw here in the Okanagan, and on Information 8456-B-6 between the 14th and 17th of December, 2014, a breach of the curfew term of the probation, that was just three weeks after his 20th of November sentencing. [ 9 ] On Information 8456-B-7, he has pled guilty to breaching the curfew term of his probation order on the 20th of December, and on Count 3, a similar breach of the curfew term of the probation order on the 26th of December, 2014.

The circumstances were that he, in effect, on the second one, he just never came home that night, was out all night.

The other one, his foster mother had gotten up at 1:00 a.m. to let the dog out and that is when she discovered that he was not there that night. [ 10 ] He was arrested on the 9th of January and released on the 12th of January, in circumstances where he had posted photos of himself on the Internet, smoking marihuana and, in effect, saying that the RCM Police could not touch him. [ 11 ] Thirteen days after that release, namely the 25th of January -- I lose track now of what happened on the 25th of January, but at any rate, by the 3rd of -- I think that might have been when he had gone to the Kootenays, yes.

So on the 25th of January, he had gone to a different key program in the Kootenays, a type of residential home, and of course it was that very day, the 25th of January, that he uttered the criminal threat to somebody there and ended up in custody, and did not get out until he was sentenced on the 3rd of February to the time served. [ 12 ] The very next day, the 4th of February, he is then just one day back from the Kootenays, and on Information 8456-BA-8, he breached his new undertaking. That was the undertaking that he had entered into because of all of the December breaches.

He breached the curfew term that first night back. [ 13 ] The very next day, the 5th of February, he was yet again arrested, and yet again released that same afternoon of the 5th of February. However, later that evening at around eight o'clock in the evening on the 5th of February, he breached his undertaking by smoking pot. The foster mother went down to his room to find him in the smoky pot haze where he was actively smoking at that time. She reported him. [ 14 ] Between the 5th and the 10th of February, 2015, he has also pled guilty to breaching his undertaking by breaching the curfew term.

He was re-arrested for the last time on the 24th of February, and he has been in custody since then, a total of 38 days now of actual custody time. [ 15 ] When I look at the probation order of the 20th of November, 2014, 18 months' probation, it references the different informations where the charges had been laid, File 8456-2-A, 8456-3-A, 8456-4-A, 8456-5-A, and some of those have multiple counts on them. So he had entered guilty pleas on these four informations to seven different breaches of either undertaking or recognizance, but it was all on one order, the one probation order.

[ 16 ] So Crown takes the position that s. 39(1)(

b) ought not be interpreted to mean failed to comply with one non-custodial order, but rather failed to comply with multiple non-custodial sentences, and she points out that it was multiple non-custodial sentences that were breached, albeit it sentences that had all been combined into one probation order. [ 17 ] Mr. Weststrate points out the B.C. Court of Appeal decision R. v. S.T. , 2009 BCCA 274 . That case involved a youth in Prince George who had been placed on probation for some criminal offence and then he was subsequently being sentenced for one breach of that probation order.

The Court of Appeal took great lengths to reference s. 39 of the Youth Criminal Justice Act , and to point out that the gateway to custody should be narrowly constructed, and if there is any ambiguity, that of course it should go in favour of the accused youth. [ 18 ] The ambiguity in that particular case, if there was any, was the fact that there had only been one undertaking and one alleged breach of that undertaking, so a potential ambiguity could be when it references "fail to comply with non-custodial sentences", that it could be referencing the original breach for which someone is sentenced, and then when they are picked up and about to be sentenced on a second one, that that could make it multiple.

But I could see where that could be ambiguous, whether that is or is not the case. It seems that is what the Court of Appeal is addressing here indirectly, even though they do not really directly say that. [ 19 ] But I do not think this case stands for the proposition that a youth, who has breached an undertaking on the 11th of October, the 19th of October, the 27th of September, the 9th of October, the 30th of October, and the 28th of October, can be said to have just had one breach, just because it is one probation order.

That is multiple non-custodial sentences; one breach order, but multiple sentences contained within that one order. I do not think there is anything ambiguous about that. [ 20 ] I do not care to comment too much on the case in the Halifax Provincial Court reported as R. v. R.J.D., 2011 NSPC 78 . I do not want to put too much weight on that case. [ 21 ] I think I am just going to stick to what the Court of Appeal here has said. I get the gist of what they are saying.

The courts should not easily turn to incarceration as a sentencing principle with youth, and in fact they should not do it based on a breach, if it is just a breach of one sentence, that it has to be in the plural.

But I do not find any ambiguity in saying that one probation order can contain multiple sentences, just as in this case there were four different informations referenced in that one probation order. [ 22 ] I think to that degree, I think it would be giving too much weight to form over substance, and it could lead to a situation where a youth who has had multiple breaches all dealt with by way of one probation order, if there was then one breach of that probation order, might think that the law is that once they then commit a breach, they might as well commit as many as they want, because as many as they can commit before they finally get caught, jail is never a possible consequence. [ 23 ] I do not think that is the intent of the law.

They want us to be careful about not abusing incarceration, but in a case like this, where this youth has just repeatedly, repeatedly breached multiple, multiple sentences, even where all of those sentences were contained in one probation order, I think it does trigger s. 39(1)(b), such that a custodial disposition is possible. [ 24 ] All of that said, it is not as though I am sending this youth to jail today, because I am going to do a deferred custody, so really the ball is in his court to stay out of jail. He is going to get out today with this deferred custody.

It is going to last until the 7th of May, the deferred custody. That way, if he breaches, he will be picked up and he will likely stay in jail in open custody, because the decision that I am making is open custody as opposed to closed. He would be able to then directly be taken to a place like the Camp Trapping, which I am told, if he gets there, would have an entrance of the 7th of May.

So it is that entrance into the Camp Trapping residential attendance program is why I have picked the exact timing of the 7th of May for being the last date of the deferred custody. [ 25 ] But it will be followed by an intensive support and supervision order. Now, the terms of that -- [ 26 ] MS. DODDS: I think Ms.

Oddy had some suggestions on the terms. [ 27 ] THE COURT: And the length of it as well, I needed to hear, because I have not quite turned my mind yet on those terms and the length of it. [SUBMISSIONS RE CONDITIONS] [ 28 ] THE COURT: Okay, I do impose an intensive support and supervision order that actually will not commence until the deferred custody order ends. In other words, so it will not commence until that 7th of May date, 2015. [ 29 ] Condition 1 will be Pick Term 500: You shall keep the peace and be of good behaviour.

You shall appear before the Youth Justice Court when required to do so by the court. [ 30 ] 105: You shall immediately report in person to the youth worker at the youth probation office located at 301, 1475 Ellis Street, Kelowna, B.C., and after that you shall report as and when directed by the youth worker. You have been there before, so you know the place that I am talking about, right.

But is that a workable term, to say that he would report after his release today or not, because I do not know. [ 31 ] KAREN ODDY: He won't be able to report today, but he can -- I'll read the order to him today. [ 32 ] THE COURT: Can you talk with him? [ 33 ] KAREN ODDY: I will. [ 34 ] THE COURT: Before -- [ 35 ] KAREN ODDY: I will.

[ 36 ] THE COURT: -- you leave the courthouse though, to give him -- [ 37 ] KAREN ODDY: I will. [ 38 ] THE COURT: Because he is going to need some direction here with regards to the reside and those kind of things, right. [ 39 ] KAREN ODDY: Sure. [ 40 ] THE COURT: Thank you. So you just need to talk with her here today before you leave, and then she will tell you when it is that the next time is that you are needing to report, right. Because it is binding just because I have pronounced it now, you do not need it in writing to be binding.

It is now binding that I have made that term, so you do not need to wait to do that reporting, you could do it while he is still in custody. [ 41 ] Then 502B: You shall reside at a residence approved by the youth worker and you shall not change your residence at any time without first obtaining the written consent of the youth worker. [ 42 ] 502D: You shall obey all rules and regulations of your residence. [ 43 ] 503: You shall obey a curfew by being inside of your approved residence between the hours of 9:00 p.m. and 6:00 a.m. each day, except with the written consent of the youth worker. [ 44 ] 506: You shall present yourself at the door to your residence when any peace officer or youth worker attends there for the purpose of determining your compliance with the curfew condition of this order. [ 45 ] 506A: You shall respond personally and immediately to the telephone when a peace officer or youth worker makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order. [ 46 ] 515A: You shall not possess or consume any alcohol or drugs, except as prescribed for you by a physician. [ 47 ] Lastly, 522: You shall not possess any weapon as defined in s. 2 or any item listed in s. 109 of the Criminal Code or any imitation thereof. [ 48 ] Let me just pause on that one to explain.

It is more than just not possessing guns, it includes things like crossbows, explosive substances, but it also says not to be possessing any weapon. Just about anything can be a weapon. Like this pen that I am using to write, if I am writing with it, it is not a weapon, but if I were to starting holding it in any way in a threatening way, even -- just about any object, this calculator here could become a weapon if I am using it that way, right.

So it is saying basically that you cannot possess anything where there is some reasonable inference that could be drawn that the reason that you are holding it is to use it as a weapon or to threaten to use it as a weapon. [ 49 ] Do you understand what I am saying? So it is just saying -- so I just want to make sure that you understand when it says no weapons, it is more than just guns or knives, right. It is saying, you know, anything that could reasonably be perceived to being used as a weapon at that time or to threaten with, that fits that definition of weapon, right.

So you just cannot have anything like that. [ 50 ] Now, this is a six-month intensive support and supervision order. Once that is done, you are still going to be on probation after that, because you are on probation until the 19th of May, 2016, but I am not going to add any more probation order with this one. [ 51 ] Look, B.C., you have got a lot going for you in lots of ways, you know. You are an athletic kid. You have been given some privileges over the years.

I understand you are a pretty good snowboarder, and academically you might not be putting in your best efforts, but you are not stupid, you are a smart enough kid that you could do whatever you wanted to, right, if you put your mind to it. [ 52 ] This whole attitude of kind of thumbing your nose at the world, not just at the justice system but, you know, to think that there are no consequences, I think you are going to hopefully get it with this that there are consequences, because you have now been in custody for those 38 days.

I took that into consideration when I was crafting this sentence. [ 53 ] So, I mean, I could have sent you to jail for more today, but I chose not to, knowing that you have just completed 38 days. But you need to understand that that deferred custody order that I made, really if you breach this curfew, chances are pretty good that you are going to end up in custody, open custody, until that 7th of May date. You do not want that. I do not want that for you either. You can do better than that, right, but I hope that brings it home to you.

You have to abide by the curfew terms and, you know, and reside where directed terms, and not using the marihuana. You just have to turn your life around that way or else you are going to end up in jail. [ 54 ] I do not want that for you and I know you can do better than that, but ultimately you are the one in control there. You have to make some good choices here. Okay. You can do better than this, I know you can. I am counting on you doing better. Good luck. [ 55 ] MS.

DODDS: Your Honour, given our recent arguments, I am going to ask that you ensure that B.C. understands he is being sentenced on four different files, and that the sentences are the same and I -- [ 56 ] THE COURT: I do not think it matters now. From a legal point of view, because regardless he had that one -- if we are counting them by probation orders as opposed to sentences, okay, you know, he now will not even have two probation orders, right. So like I hear what you are saying there but -- [ 57 ] MS.

DODDS: More for Madam Clerk's benefit than for anything, that the DCSO and the ISSP apply on all four files, and that Ms. Oddy has drawn my attention to the fact that the -- [ 58 ] THE COURT: No, that is a good point and that is what I am ordering, that it applies to all, but I am more in the camp to say it all be on one order, one form.

[ 59 ] MS. DODDS: Yes. [ 60 ] THE COURT: Although to me it is multiple sentences that I am dealing with here, but I am just combining them all onto one order, so it is simplified for him that way. [ 61 ] MS. DODDS: Yes, and Ms. Oddy has drawn my attention to the fact that the deferred custody supervision order does need to have conditions, and it would just be the same conditions as the ISSP. [ 62 ] THE COURT: Okay, that makes sense, I will apply those same conditions. [ 63 ] MS. DODDS: Unless Mr. Weststrate has any comments on that. [ 64 ] MR.

WESTSTRATE: No, I don't, no. [ 65 ] THE COURT: No, I agree that those same conditions will apply throughout both of the two orders. [ 66 ] MS. DODDS: Thank you. [ 67 ] MR. WESTSTRATE: Thank you. [ 68 ] THE CLERK: And the outstanding counts? [ 69 ] MS. DODDS: Crown can direct a stay of proceedings on any outstanding counts on those four matters. THE HONOURABLE JUDGE R.SMITH