R. v. Q.J.S., 2023 BCPC 92

Citation: R. v. Q.J.S. 2023 BCPC 92 Date: 20230224 File No: 9342 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA YOUTH CRIMINAL JUSTICE ACT REX v. Q.J.S. Restriction on Access s. 110 and s. 118 YCJA Ban on Publication 486.4(2.2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Crown: C. Cook Counsel for the Defendant: D. McNamee Place of Hearing: Kamloops , B.C.

Dates of Hearing: December 13, 2022, February 24, 2023 Date of Judgment: February 24, 2023 INTRODUCTION [ 1 ] These are my reasons on sentencing of Q.J.S., Information 9342-1. Mr. S. is a youth and has pled guilty to the single count of assault causing bodily harm to J.S. [ 2 ] Counsel come before me with a joint submission on sentencing, asking me to discharge Mr. S. and place him on probation for 12 months. [ 3 ] The circumstances of this offence have been set out by Crown in detail and are admitted. They include that on March 18, 2022, around the time of Mr.

S.s’ sixteenth birthday, he attended a bush party with over 100 other youths. Mr. S. had consumed some alcohol that evening. The assault occurred when, without warning, Mr. S. approached another youth, Mr. J.S., from behind, put him in a chokehold, got him down to the ground, got on top of Mr. J.S. and then proceeded to punch Mr. J.S. repeatedly in the back of the head an estimated 20-25 times, until Mr. J.S. went limp and lost consciousness. Mr. J.S. did not resist at any point in time during the altercation. When Mr.

S. was done, he got up and walked away, without looking back. [ 4 ] Given the number of young people present, the events were videotaped by others in attendance and posted online. Police viewed various video footage and the video footage was supported by the statements of two youth in attendance. [ 5 ] During Crown’s

summary of the circumstances, Crown explained that when the victim came to, he could not feel his legs. Consequently, paramedics were called and the victim was carried out of the bush on a body board. [ 6 ] When this matter was last in court, Crown did not have any information from the victim, nor could Crown tell me whether a Victim Impact Statement had been requested.

I was not prepared to conclude the sentencing without further information about the injuries and impact, if any, on the victim and accordingly, I adjourned the sentencing for continuation. [ 7 ] Crown has since provided me with a Victim Impact Statement dated January 5, 2023. I will take a moment to read in the relevant parts of that statement: I became very anxious and paranoid following the assault. I wasn’t comfortable going outside or to school. I had panic attacks when needing to leave the house on a daily basis. I stopped seeing friends for fear of attack when out in public.

I had nightmares and crippling anxiety. I struggled to attend school and required a modified program. I was brought to emergency with a head injury. Diagnosed with concussion + PTSD. Frequent migraines for 6 mths. Confusion + difficulty concentrating. I still have a lump on the back of my head. I had much sensitivity to light and required sitting in a dark room each migraine. I had debilitating anxiety + fear regarding seeing the offender in public. I stopped taking public transit or attending public spaces. I stopped socializing with peers. I had a hard time attending school for fear of retalliation [sic].

THE OFFENDER [ 8 ] Turning now to the circumstances of the offender. [ 9 ] Mr. S. is 16 years of age and in grade 11. I am told he struggles in school due to a learning disability and ADHD and that at the time of the events, his medications were not “figured out”. Defence counsel advises that Mr. S. identifies as having Métis background, but I have not been provided with any other information as to whether or how Mr. S.s’ cultural background may have played a role in bringing him before the court. [ 10 ] When we were last in court on this matter, Mr.

S. sat in court with the support of his father and I note his father’s presence here again today. Mrs. R.S. (or “Mrs. S.” or “R.S.”) (the mother) has not attended but defence counsel presented an email from R.S., now marked as Exhibit 1, in which Mrs. S. expresses her support of her son. Mrs. S. explains that since the event, Mr. S. has minimized his social circle and chooses friends more carefully. Mrs. S. also explains that Mr.

S. has since secured a job that he takes very seriously, that he has engaged with a counsellor, that he intends to continue with those sessions and that he is volunteering in the community with Aboriginal children and youth. CASELAW [ 11 ] Given the level of violence in this case, I raised concern at the last appearance about the appropriateness of a discharge. In anticipation of that concern, defence counsel provided me with the Nova Scotia Court of Appeal case of R. v. P.J.S., 2008 NSCA 111 (“ PJS ”).

In PJS , the youth court judge indicated that a discharge was not an appropriate sentence because it was contrary to the public interest and instead, ordered nine months of probation with conditions. A

summary appeal court judge dismissed his sentence appeal and PJS appealed to the Nova Scotia Court of Appeal. The appeal court allowed the appeal and a discharge was substituted. [ 12 ] In arriving at its decision the appeal court affirmed that in youth sentences there are not many practical differences between a discharge and probation. The court explained that the differences between the two are largely technical and relate primarily to the length of time that a young person’s youth record would be accessible.

The access period is longer if a young person is sentenced to probation, as opposed to a discharge. [ 13 ] The Youth Criminal Justice Act (“ YCJA ”) provides that the record of a youth sentenced to a discharge is accessible for up to three years after the finding of guilt, pursuant to s. 119(2)(f). Section 119(2)(g), however, indicates that the record of a youth sentenced to

probation is accessible for up to three years after the sentence is completed. In PJS , that difference amounted to nine months. [ 14 ] Another difference is that a further youth or adult conviction is immaterial to the length of the period of access in relation to a discharge. However, access to a record of a youth sentenced to a probation order is extended if there are further convictions during the period of access.

Of greater importance is s. 119(9), which in effect converts a youth record to an adult record if an adult offence is committed during the period of access and the original sentence was not a discharge. [ 15 ] To summarize, other than the record and the period of access to it, the practical differences between a discharge and probation are not that significant.

They are strikingly similar – both sentences are meaningful and will hold a young person accountable. [ 16 ] Probation, however, can be said to have the effect of holding a young person accountable to good behaviour for a longer period, given the additional period of access.

Having said that, provided that the young person does not re-offend, and provided they comply with all of the terms of probation during the period of access, any other differences become moot once the youth criminal history is sealed. [ 17 ] In PJS , although the Court of Appeal substituted the original nine-month probation order for a discharge, it did not do so because the original sentence was inappropriate. The higher court made the substitution after finding that the trial judge applied the incorrect test.

Specifically, the trial judge applied the prerequisites for an absolute discharge as set out in s. 42(2)(

b) as the prerequisites for a discharge as set out in s. 42(2)(c). Said differently, the sentencing judge concluded that although a conditional discharge might be in the young person’s interest, a conditional discharge would be contrary to the public interest. The public-interest test, however, is not a consideration or prerequisite to a discharge in youth cases. A discharge requires consideration of the factors set out in s. 38(2)(e.1), and it is on that basis alone that the trial judge’s decision was overturned.

LEGAL ANALYSIS [ 18 ] I turn then to the relevant sentencing principles set out in sections 3 and 38 of the YCJA . [ 19 ] The sentence I impose must be meaningful in that it should reinforce respect for societal values, encourage repair of the harm done to victims and to the community; it needs to be meaningful for the individual young person given his needs and level of development and where appropriate, involve the parents, extended family, the community and social or other agencies.

It must also respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements. [ 20 ] The sentence I impose must have meaningful consequences for the young person and promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 21 ] The sentence may also be one that denounces this type of conduct and one that will deter this offender and other young offenders from committing offences. [ 22 ] In accordance with s. 38(3), I have considered the following relevant factors: a.

Mr. S.s’ degree of participation in the offence: he instigated the assault and he was the only attacker involved; b. I have considered that the harm done to the victim was intentional and that any injuries suffered by the victim were reasonably foreseeable; and c. In terms of other reparations, I have considered the community work that Mr. S. has undertaken of his own accord since these events. That work is certainly a positive step toward reparation to the community. [ 23 ] I have also considered the relevant aggravating and mitigating factors. The aggravating factors include: a.

The youthfulness of the victim: he was only 14; b. The nature of the offence: this was an unprovoked random attack of violence quite distinguishable from the assault that took place in PJS . That case involved a youth hitting an adult a couple of times in the face. The adult was not injured; c. The circumstances suggest no hint of provocation or self-defence; d. The nature and extent of the victim’s injuries; and e. I find it aggravating that following the attack, Mr.

S. turned his back on the victim and walked away without looking back, and without any care or concern for the injuries he might have caused. [ 24 ] With respect to the mitigating factors, I find they include: Mr. S.s’ youth; the fact that this was an early guilty plea; the fact that Mr. S. does not have a criminal record; and the initiative he has taken on his own to receive counselling and to engage in community- service work. Those actions do demonstrate some level of insight and remorse. JOINT SUBMISSION [ 25 ] As I noted at the outset, this is a joint submission.

For Crown and defence counsel to agree to recommend a particular sentence to the court in exchange for a plea of guilty is an acceptable means of case resolution. The practice can be vital to the efficient operation of the criminal justice system; however, joint submissions on sentence are not binding and trial judges may depart from them. [ 26 ] The public-interest test, while not a prerequisite for determining a discharge in youth cases, is still the proper test to be applied in determining the acceptability of a joint submission. The public-interest test helps to keep trial judges focused on the unique

considerations that apply when assessing the acceptability of a joint submission. [ 27 ] Under the public-interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [ 28 ] R. v.

Anthony-Cook , 2016 SCC 43 , explains that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if a submission is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

This is an undeniably high threshold. [ 29 ] Given the level of violence, the various aggravating factors of this particular case and the prevalence of this type of behaviour in our communities, I am not satisfied that the joint submission sufficiently addresses the principles of sentencing under the YCJA , which include the principle of general deterrence. In the circumstances, I find that a sentence of probation on the terms discussed is more appropriate. DECISION [ 30 ] Mr. S., please stand. [ 31 ] On information 9342, I am sentencing you to probation for a period of 12 months.

The terms of probation are as follows: a. 2001 – you must keep the peace and be of good behaviour; you must appear before the youth justice court when required to do so by the court; you must notify the youth justice court or the youth probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of school, employment or occupation; b. 2101 – you must report in person to the youth probation officer by 4:00 p.m. on Monday, February 27, 2023, and after that, report as directed by your youth probation officer; c. 2106 – your reporting ends when you have satisfied your youth probation officer that you have (

a) completed all of your community- work service and (

b) completed all of your counselling and (

c) your youth probation officer has told you that you are no longer required to report; d. 2002 – you must have no contact or communication directly or indirectly with J.S. except through an apology letter as contemplated by this order; e. 2005 – you must not go to any place where J.S. lives, works, attends school, worships or happens to be. If you see him, you must leave his presence immediately without any words or gestures; f.

You must continue to attend school and maintain your employment and advise your youth probation officer forthwith upon any changes; g. 2401 – you must not possess or consume alcohol or drugs or any other intoxicating substances, except with a medical prescription; h. 2501 – you must attend, participate in and complete any intake assessment, counselling or education program as directed by your youth probation officer, including counselling for violence prevention. The counselling requirement may be fulfilled by Mr.

S. continuing counselling with his current counsellor; i. 2509 – you must complete 40 hours of community work under the direction of your youth probation officer. Your community work must be completed by the end of your probation period and may include any hours that your youth probation officer can confirm have been completed through any recent volunteer work that you have done with Aboriginal children and youth; j. 2610 – 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. k. 2515 – you may apologize to J.S. in the manner directed by your youth probation officer and to the satisfaction of your youth probation officer by April 30, 2023. l. Count 1 on Information 9342-1 is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. You must attend at the Kamloops RCMP located at 560 Battle Street before March 10, 2023 and submit to the taking of the samples.

This order is valid until executed. _____________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia