Regina v. B.C-V. Date:, 2012 BCPC 443

Citation: Regina v. B.C-V. Date: 20121004 2012 BCPC 0443 File No: 87345-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.C-V. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: H. Sangha Counsel for the Defendant: A. Burns Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 4, 2012 Date of Sentence: October 4, 2012

[ 1 ] THE COURT : What has happened here and the circumstances surrounding what brings us all here together is very complex and makes sentencing here so difficult. [ 2 ] Nobody takes issue with B.C-V.'s background which indicates he has mental issues as a result of his development over which he had absolutely no control. These gave rise to behavioural issues and given the subsequent diagnosis, that is not unexpected. It turns out that because of that mental state he has acted out at times. [ 3 ] His counsel referred to the extremes of his behaviour. There is, I think, an element of impulsivity present.

Unlike many of us here, he does not have the tools nor the ability nor the knowledge nor the sophistication nor the experience to address issues in a way acceptable by society, and that is why he has been at the Forensic Psychiatric Institute (FSI) in a very controlled setting and why he is let out at times under very strict supervision. All of this has been since 2007, when, as a youth he committed assault causing bodily harm. [ 4 ] In any kind of normal situation where an individual was not suffering from any kind of mental issues, that individual would have served his sentence long before today.

As it turns out, however, B.C-V. continues to serve a sentence, and for how long into the future he continues to do so is a great big question mark. [ 5 ] Within that setting and within that environment when he is under the care of caregivers who are aware of his mental issues, who are aware of his diagnosis, who are aware of his personality, who are aware of his temperament, who have knowledge of what he is capable of, with all of that there was an incident in which he was originally charged with sexual assault and has pleaded guilty to assault.

In the circumstances, I think it is an appropriate plea. [ 6 ] There is no question here that I accept fully what the Crown says of the victim's traumatic impact on her.

But I think it is also important to bear in mind the context within which all of this occurred, the background within which it all occurred, and in particular B.C-V.'s individual background. [ 7 ] At the end of the day, really what is being asked for us to do is to impose criminal sanctions on an individual who suffers from a mental condition, not because he chose it, not because he wanted it, but because he was born with it. [ 8 ] I can understand society's interest in individuals like B.C-V., not seeing how better off we are, and wanting to warehouse them.

But as counsel just pointed out, we cannot forget, ever, that what we have before us first and foremost is a human being who started out in the system as a child and is now a youth.

He is now 21 years old. [ 9 ] Is it appropriate, when really the emphasis should be on treatment in addressing his mental issues and encouraging him to proper care, to be able to integrate back into our society and live amongst us, to keep him away with all kinds of manner of conditions and restrictions on his liberty? [ 10 ] It seems to me this is really a social issue and over time our criminal courts have become involved in imposing criminal sanctions on individuals such as him just because there are no other available ways of handling him. [ 11 ] In my view, I think something that also cannot be forgotten here as to what is appropriate, is balancing, as Crown pointed out, the impact that this had on the victim, a caregiver, in a setting that is secure while at the same time there is some expectation that people will be acting out, where it does happen regularly.

There is that knowledge, that awareness, and the training for that on the one hand, balanced against the particulars of this individual. Balancing those two I think in the circumstances is what makes the sentencing particularly complicated. [ 12 ] It would be very easy if an individual committing this offence in a normal setting with all the normal background circumstances to say, "That's a no-no and we're going to impose a criminal sanction, no question, no problem". It is not so easy in this case.

The likelihood is that in a very real way he will continue to be under the supervision of the Review Board of FPI and with limited freedom if he gets that, but it would be under strict conditions. What more conditions would be necessary? It could be all redundant in the circumstances. Do we impose those conditions just because it is a criminal sanction that is going to be reflected in the record, and is that the purpose of sentencing?

Or do we deal with the individual as the courts always say with his particular background and the particular circumstances and balancing all the various principles, impose a sentence that is customized to him in those particular circumstances?

I think that is the course that has to be taken. [ 13 ] I bear in mind all of the circumstances including this accused's background circumstances, the events that led up to this offence, the circumstances surrounding the commission of this offence and the impact it has had on the complainant. [ 14 ] I bear in mind the various issues: mental, physical and otherwise, all that he has been through and will continue to go through in the near future and perhaps into the distant future.

I also bear in mind that he is fortunate to have the strong support of his parents who are willing to continue to support him in any way they can and to assist him into integrating back into our society when that time comes. [ 15 ] I also bear in mind for consideration that the original charge has hung over his head and has severely impacted on his annual review before the Review Board.

There has thus been an impact on him and on his life. [ 16 ] Bearing all those factors in mind, what is an appropriate sentence here? [ 17 ] After carefully considering those factors, weighing the principles applicable here, the realistic likelihood of rehabilitation and at the same time the purpose and impact of so-called general deterrence where the circumstances are so particular to this individual in the particular circumstances and the particular location where it occurred, I cannot see it being of any significant effect by way of general deterrence.

Specific deterrence, I think he has gone through it already. [ 18 ] I have concluded after careful consideration of what he has gone through, where it has happened, how it has impacted on the

complainant, and where he will continue to be for the immediate and maybe for the distant future, that really in terms of this offence I think an absolute discharge is appropriate. [ 19 ] Now, what am I going to do? I am going to ask for you -- however, under the inherent common law jurisdiction I can impose a recognizance can I not for a period of time of the maximum 12 months with a condition? [ 20 ] MR. SANGHA: Your Honour, given your comments, you are right. It may have no real – [ 21 ] THE COURT: All right. That's it. [ 22 ] MR. SANGHA: Okay. [ 23 ] MR.

BURNS: Thank you, Your Honour. [ 24 ] THE COURT: I think that is being realistic in the whole situation. [ORAL REASONS FOR SENTENCE CONCLUDED]