R. v. M.K.Y., 2022 BCPC 186

Citation: R. v. M.K.Y. 2022 BCPC 186 Date: 20220622 File No: 9006-1 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REGINA v. M.K.Y. Restriction on Access s. 110 and s. 118 YCJA Ban on Publication 486.4(2.2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Crown: A. Janse Counsel for the Accused: C. Thompson Place of Hearing: Merritt , B.C. Date of Hearing: June 22, 2022 Date of Judgment: June 22, 2022

Introduction: [ 1 ] M.K.Y. appears before me on Information 9006-1 for sentencing after having plead guilty on April 5, 2022 to one charge of assault. After hearing from Crown and Defence, I adjourned this matter to allow counsel the opportunity to provide supporting case law on the suitability of the proposed joint sentence, especially given the nature of the assault. I also asked for further information with regard to the victim’s injuries. [ 2 ] In regards to the nature of the assault, Counsel suggested that I may want to review the video footage of the events prior to passing sentence.

However, counsel have yet to provide me with any footage. Accordingly, I base my Reasons only on the agreed circumstances that have been read in. Joint Submission: [ 3 ] Counsel propose a conditional discharge with 12 months of probation on terms similar to the terms that M.K.Y. is already bound by through a release order. Sentencing Range: [ 4 ] A conditional discharge is within the range of possible sentencing options for an assault conviction. However, before granting a discharge the court must consider the appropriateness of the discharge.

During submissions, counsel referred to the Fallofield test, which would require me to consider the best interest of M.K.Y. and the public interest. However, the Fallofield test (often referred to in adult cases) is not a prerequisite for a discharge pursuant to s. 42(2)(

c) of the Youth Criminal Justice Act (“ YCJA ”). Rather I must limit myself to considering the general sentencing principles that are set out in s. 3 and the specific sentencing principles that are set out in s. 38 of the YCJA . These considerations are confirmed in the two cases provided by Crown: R. v M.B. , [2013] B.C.J. No. 2111 (at para 63 ) and R. v. L.P. , [2016] Y.J. No. 120 (at paras 16 and 20 ). Circumstances: [ 5 ] On September 4, 2021, at approximately 11:05 p.m. the Merritt RCMP received a report of a fight. They attended the scene and located about 30 to 40 teenagers having a party.

Upon arrival the RCMP were provided with a number of cell phone videos and statements from various youth all of which described the events that took place. Essentially, a swarming occurred involving N.B. (the “Victim”) and M.K.Y., together with her two co-accused. [ 6 ] The events began with a verbal altercation between the Victim and M.K.Y.’s co-accused (B.P.). The two ended up on the ground. When that altercation concluded the Victim got up to walk away. As she did so she was tackled by the other co-accused (D.S.). B.P. then jumped on top of the Victim, and punched her several times.

At this point M.K.Y. was walking around. She approached the scuffle and kicked the Victim twice while she was on the ground. Both kicks were to the head and the second kick caused the Victim to lose consciousness. The Victim regained consciousness shortly thereafter, was taken to the hospital, and provided a statement that the altercation started over a rumour. [ 7 ] Defence has agreed to the circumstances as alleged. [ 8 ] Of the three co-accused M.K.Y.’s circumstances are the most aggravating. [ 9 ] Crown counsel stated that M.K.Y. was 17 at the time, and that she has no criminal record.

Crown noted as well that she has conduct of a number of other criminal files where M.K.Y.’s former boyfriend, Mr. H., has been charged with assault on M.K.Y.. Crown says that Mr. H. has numerous breaches, and consequently M.K.Y. has been the victim of ongoing domestic violence. [ 10 ] I am told that M.K.Y. has been compliant on bail. [ 11 ] Crown asks me to take into consideration that M.K.Y. has taken responsibility for her

part in these events by pleading guilty at an early date. I am told there are no allegations of any breaches, and that her bail supervisor says that M.K.Y. has come quite a ways in terms of her cooperation and in taking responsibility. [ 12 ] With respect to the proposed conditions for probation, Crown suggests that the terms of probation mirror the bail conditions that M.K.Y. has been bound by for six months now.

The only new condition relates to counselling. [ 13 ] In terms of new information, Crown now advises that the Victim sustained a potential concussion at most, and submits that any other injuries were transient or trifling. There is no other medical information available for the Victim. Crown informs the court that the Victim has declined to complete a victim impact statement but that the Victim is pleased to hear that all three accused involved are taking responsibility for what occurred. I am also informed that B.P., who had lesser involvement, received a conditional discharge and 12 months’ probation.

Circumstances of the Young Person: [ 14 ] M.K.Y. is now 18 years old. She is a mother to a three year old child, and shares parenting responsibilities equally with the child’s father on a five day on / five day off schedule.

I am also informed today that M.K.Y. is now two months pregnant with her second child. [ 15 ] Defence counsel advises that M.K.Y. has a younger brother who has been diagnosed with autism, and says that M.K.Y. has been actively engaged in assisting with his care, as well as providing for her young daughter. [ 16 ] For the past four years M.K.Y. has attended [omitted for publication] (an [omitted for publication] in Merritt) (which is the same

school attended by the two other co-accused). As of the last court date in April, M.K.Y. was two months away from finishing her Grade 12. I am told that M.K.Y. has been drug free for a year now. Although I am unclear of whether alcohol is an issue, Defence counsel submits that M.K.Y. is to be commended for her sobriety, for completing her Grade 12 despite her parenting responsibilities, and for the job she has done with her child.

Defence counsel submits these efforts show a level of maturity. [ 17 ] Defence counsel also expressed that he has had a serious discussion with M.K.Y. and her mother about the more serious consequences that could have flowed from the events. Specifically, he stated that he had a discussion with M.K.Y. about how murder occurs through inadvertent actions, when things go too far.

He says his client realizes the gravity of what occurred and that she is genuinely remorseful. [ 18 ] I am advised that around the time of the events, M.K.Y.’s uncle died of a fentanyl overdose and around that same time her family was forced to evacuate Merritt due to the flooding. Added to that is that M.K.Y.’s young cousin had been struck and killed by a propane truck. Defence counsel stated M.K.Y. had been carrying around all of this trauma when the assault occurred. He said she deeply regrets her actions, and she knows this is serious. [ 19 ] The court also heard from M.K.Y.’s mother, P.Y.

She expressed that she had challenges with her daughter throughout her teenage years. She said that her daughter had gotten herself in a few little “issues”, that she was young and lost her way, but that she has come out drug free and is a wonderful mother. P.Y. believes her daughter has the potential to be good. She stated that M.K.Y. wants to go to college to become a lab technician.

P.Y. supports the idea of counselling to assist M.K.Y. especially with trauma, drugs and alcohol. [ 20 ] In her address to the Court, M.K.Y. said she does understand what she has done and stated, “it wasn’t probably the smartest of ideas but I feel like I made it a long way from where I was and I’m ready for it to be over and I do apologize”. Caselaw: [ 21 ] As I noted Crown provided two cases which set out the principles and considerations involved in youth sentencing.

These cases also discuss the necessary considerations when the court is presented with a conditional discharge versus, say, a probation order with comparable terms. In R. v L.P., supra, the Court notes that the leniency of a conditional discharge per se as compared to probation is largely misperceived and overstated in youth matters, and that there is no reason why the principles of proportionality and accountability cannot be achieved as effectively through a discharge as probation. [ 22 ] Defence has relied on R. v. M.A.M. , 2004 B.C.J. No. 2548 .

That case involved a youth who was charged with assault causing bodily harm on a police officer. The youth in that case was 18 years old at the time of sentencing, and for work purposes had a need to cross the border. Defence suggested that a discharge would help the young person in being able to do so. The court concluded that a record of conviction would not be in the young person’s best interests as his work required him to travel internationally several times a year.

The court ordered a discharge and tightened the probation order by adding a term that the young person perform 30 hours of community work service. [ 23 ] While I can appreciate the court’s decision in that case, it is a case from 2004. In the last 20 years, and particularly in the last couple of years, youth violence has continued to escalate across Canada and in this province. The public is, almost weekly it seems, being inundated with news stories that involve similar incidents of youth violence and swarming. Sentencing Objectives: [ 24 ] The legal framework which I am required to consider is the YCJA .

This is a separate justice system that has been created by our country’s highest court and it was enacted in 2003. The YCJA focuses on persons 12 years of age or older but less than 18 years of age, and is based on the principle of diminished moral blameworthiness or culpability. [ 25 ] The broad principles that govern the sentencing process under the YCJA are set out in s. 3(1)(c): (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements… [ 26 ] The specific principles that the court must consider in a youth sentence are set out in s. 38(2): (

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

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; … (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. [27] The factors the court must consider in determining a youth sentence are set out in s. 38(3) and include: (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose andprinciples set out in this section. [28] Counsel have not made any submissions regarding the aggravating or mitigating factors. Nonetheless, I have considered them andacknowledge that M.K.Y. is a youth, that she has acknowledged responsibility through her guilty plea, and that she has expressedremorse.

With respect to the aggravating factors I am mindful that the circumstances of the offence include that M.K.Y. took advantageof the Victim while she vulnerable; at the time of the assault the Victim was on the ground and had already been attacked by the co-accused. I also take into consideration that M.K.Y. was involved in a crime (namely, teen violence) that is far too prevalent in ourcommunities such that the court must focus on deterrence. [29] Section 39(1) sets out that the court must not impose a custodial sentence unless at least one of the following conditions is met: (

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

b) the young person has previously been found guilty of an offence under

section 137 in relation to more than one sentence and, if thecourt is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or

section 137, the young personcaused harm, or a risk of harm, to the safety of the public in committing that offence; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more thantwo years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act orthe 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 aresuch that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. 39(2) If any of the paragraphs (1)(

a) to (

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

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

section 38. [30] All available youth sentences are found in s. 42 of the YCJA and the possible sentences include custody, but only if the conditionsset out in s. 39 (1) are met. [31] Based on the submissions I have heard, the question before me today is this: Does the seriousness of the offence and theconsequences for the Victim make a discharge an inappropriate disposition? [32] Given the circumstances of this case, I am not satisfied that a discharge on the proposed conditions is appropriate as the proposedsentence, in my view, is inconsistent with the principles and purposes of sentencing. [33] I reach this conclusion keeping in mind the law as set out in R. v.

Anthony-Cook, 2016 SCC 43 , 2016 S.C.C. 43, thattest being whether the proposed sentence would bring the administration of justice into disrepute or whether it would otherwise becontrary to the public interest. [34] R. v. Anthony-Cook, supra, is authority for the proposition that a joint submission should not be rejected lightly. A rejectiondenotes a submission so unhinged from the offender and the offence that to accept it would cause reasonable and informed persons, whoare aware of all the relevant circumstances, to believe that the proper functioning of the justice system had broken down.

This is anundeniably high threshold, and in consideration of all the circumstances, combined with the principles of youth sentencing, I find that test

has been met in this case for the following reasons: 1. Defence says M.K.Y. has been drug free for a year now. That means that M.K.Y. would have been drug free on the eve of September 4, 2021 when these events took place. Her better judgment was not impaired. When I confirmed this timing with counsel today, M.K.Y. acknowledged that she was drug free at the time but in response told the court that she was drunk on the night of these events. Defence counsel has not indicated whether M.K.Y. has an alcohol problem and/or whether she has taken any steps to deal with any alcohol issues.

I note, however, that M.K.Y.’s mother has suggested that alcohol has been an issue for her daughter. I hope that M.K.Y. does recognize the impact that even alcohol can have on the choices she makes, especially now that she is carrying another child. 2. M.K.Y. is a mother, and by my calculations her child would have been two years old at the time of the assault. I am told she has done a wonderful job as a mother, and that she is showing a level of maturity that she ought to be commended for. That may be the case now, but her actions on September 4, 2021 (only nine months ago) convince me otherwise.

If M.K.Y. is serious about her role as a parent, and soon she will be a parent of two young children, she needs to think very carefully about what kind of a role model she wants to be for her children. 3. Her own statement: “it probably wasn’t the smartest of ideas”. That is an understatement. This attack was beyond a bad idea. Ms. M.K.Y., you chose to attack the Victim at a point when she was already vulnerable, when she was already on the ground, and when she had already been kicked in the ribs by your co-accused. She was at a disadvantage. There was no suggestion raised that you acted in self- defence.

In your poor judgment, you chose to be a follower when you had the opportunity to intervene and stop the violence (at best). In other words, you had the opportunity to be a leader and to set an example and (at worst) you could have done nothing. Instead, you submitted the Victim to a level of violence that exceeded anything else that had yet to occur that night. You did that when you delivered two kicks to her head, the second of which caused the Victim to concuss and require medical attention. The media has been inundated with recurring and disturbing episodes of violence among youth.

Teen violence is a top of line concern for people in our province and across our nation. Victimized youth have died from these very types of events. Your counsel correctly pointed out to you how easily these charges can end up as murder charges.

You were very lucky. [ 35 ] Although the difference between what is being proposed (a conditional discharge) and the sentence I am about to impose is marginal, I find that if the public were aware of all the relevant circumstances, and if I were to impose a conditional discharge in the circumstances, they would find that the proper functioning of the justice system has broken down, and that the administration of justice has been brought into disrepute. [ 36 ] Accordingly on Information 9006-1 I am sentencing you to probation for a period of 12 months, the terms of which are as follows: 1.

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. You must notify the court or the Youth Worker in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. 2. You shall have no contact or communication, directly or indirectly, with N.B., B.P., or D.S., except as permitted by this order. 3. You must not go to or be within 50 metres of any place where N.B. lives, works, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. 4. You must report by telephone to a Youth Worker at the Youth Probation Office located at 1165 Battle Street, Kamloops, British Columbia by 4:00 p.m. tomorrow. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a Youth Worker and received further direction to report. After that, you must report as directed by your Youth Worker. 5. You must live at [omitted for publication], Merritt, British Columbia, and provide your Youth Worker with your phone number.

You must not change your address or phone number without prior written permission from your Youth Worker. 6. For the first three months of this order, you must obey a curfew by being inside your residence or on its lot between 10:00 p.m. and 5:00 a.m. every day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends or calls to check on you during the curfew. You may be away from your residence during the curfew with the prior written permission of your probation officer.

Such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence. 7. You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription. 8. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for:

a) anger management;

b) violence prevention;

c) alcohol or drug addiction; or

d) mental health. 9. You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including:

a) firearms and ammunition;

b) cross-bows, prohibited or restricted weapons or devices, or explosive substances;

c) anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person;

d) any imitation of all the above, including any compressed air guns or BB/pellet guns; or

e) any related authorizations, licences and registration certificates, and you must not apply for any of these. 10. You must apologize to N.B. in the manner directed by your Youth Worker and to the satisfaction of your Youth Worker by July 15, 2022.

______________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia