R. v. E.Z.O., 2022 BCPC 319

Citation: R. v. E.Z.O. 2022 BCPC 319 Date: 20221102 File Nos: 24253-7-BC, 24393-1, 24379-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Division REX v. E.Z.O. AND: File Nos: 24364-1 Registry: Vancouver REX v. E.Z.O. AND J.R. Youth Matter - Restriction on Access, s. 118 & s. 110 YCJA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.M. BOND Counsel for the Crown: J. McPherson Counsel for the Defendant: T.B. Martin Place of Hearing: Vancouver , B.C. Date of Hearing: November 2, 2022 Date of Judgment: November 2, 2022

[ 1 ] THE COURT: E.Z.O. entered guilty pleas on Information 24393, to Count 1, a charge of robbery arising on February 28, 2022; on Information 24379, to Count 1, a charge of aggravated assault on June 14, 2022; and on Information 24253-7-BC, to Count 1, a charge of breach of Judge Brownstone's Order by possessing bear spray on March 12, 2022. [ 2 ] The circumstances of the offences are as follows.

On Information 24393-1, the robbery charge, on February 28, 2022, just six weeks after being sentenced to an Intensive Support and Supervision Order (ISSO) on other matters, E.Z.O. responded to an ad for the sale of Nike Air Jordans for $375 by 23-year-old Mr. Obdosantos. They met at the Edmonds SkyTrain parking lot where E.Z.O. sprayed the victim with bear spray, took the shoes, and took off on the SkyTrain.

It took a while to identify E.Z.O. and the information was sworn on July 20, 2022, when a warrant issued. [ 3 ] On Information 24253-7-BC, the charge of failure to comply, on March 12, 2022, two weeks after the robbery of Mr. Obdosantos, the police were called to 4700 Kingsway in Burnaby where a victim alleged he was bear-sprayed by three male youths outside the Walmart store.

Police located four youths, including E.Z.O., who ran and was seen discarding a knife and a can of bear spray. [ 4 ] On Information 24379-1, the aggravated assault charge, on June 14, 2022, six months into his ISSO, E.Z.O. walked into the A&W at 1715 East Broadway in Vancouver at 5:10 p.m. It was dinnertime so other patrons were there. He had a brief conversation with a youth, P.D., who was seated in the A&W. They knew each other, although they were not friends. E.Z.O. stabbed P.D. in the head with a small knife, then slashed at him. When P.D. fell to the floor, E.Z.O. continued to strike him and then fled.

When the police arrived eight minutes later, they seized a small knife blade from the floor of the restaurant. P.D. required 18 staples to close the wound to his scalp. [ 5 ] The circumstances of E.Z.O. are set out in a presentence report. The original report is dated December 1, 2021, and was prepared prior to the January 2022 sentencing. An update was ordered by Judge MacLean in August of 2022. E.Z.O. is 17 years old and was 16 at the time of these offences. He was born in Canada. His parents were refugees from Uganda and Ghana. He lived with his mom, who is deaf and has other challenges.

His dad was not involved in his life. [ 6 ] The Ministry of Child, Family and Community Services first removed him at the age of two and he was permanently removed at the age of six due to concerns about inappropriate forms of discipline. He has had limited contact with his mom since. He formed little attachment to either parent and learned six months ago that his father has passed away, which was difficult for him. [ 7 ] The Ministry has struggled to find a stable and long-term placement for him.

He spent some time successfully with one resource, but was forced to move when the pandemic hit because he had trouble complying with COVID safety rules and an elderly person lived there. The PSR report details that he has been hard to place because of odd, negative, and sometimes dangerous behaviour. [ 8 ] In April 2021, he moved to a place run by Spectrum Learning Centre in Surrey. Initially, he struggled, but Ms. Wooding reported that he developed some good relationships and could be polite, courteous, and accommodating. She also reported some critical incident reports.

However, she remains very supportive of him. He was also attending Genesis North East Alternate Program daily where his teacher reported no behavioural issues. He did miss some school when he was able to secure employment through the Creative Employment Program. However, he lost three consecutive jobs because he could not comply with the requirements of the positions. [ 9 ] He is passionate about music and intends to pursue recording music. [ 10 ] We also have the benefit of a psychiatric report dated November 16, 2021, which reports that he has been diagnosed with ADHD, and an autistic disorder.

He was assessed at the age of four when it was apparent that his developmental milestones were delayed. He struggles to manage social interactions, communications, and his behaviour. However, whereas he previously declined counselling, he is now open to it and recognizes that it would assist him in making better decisions. [ 11 ] At this hearing, E.Z.O. had the support of Ms. Pereira, a Youth Worker, as well as Christy Wooding, the manager of the Spectrum Learning Centre which manages the resource where he was living and where he will return to upon his release.

I am told his Youth Worker, Richard DeBeck, is also very supportive, but was unable to attend on the hearing date on October 28. All of these individuals are very familiar with him, are supportive, and have provided positive feedback. [ 12 ] E.Z.O. has acknowledged that he was under the influence of alcohol when he committed the offences. He has expressed that he does not want to continue spraying people and expressed remorse for the robbery of Mr.

Obdosantos, stating that he should not rob people, they do not deserve it, that he has too much to lose, and wants to live a more positive life. [ 13 ] E.Z.O. was sentenced on January 14, 2022, for various offences which occurred in 2020 and 2021. Judge Brownstone imposed an 18-month Intensive Support and Supervision Program (ISSP) with 13 conditions. E.Z.O. has been candid about his substance use and reported that he drank to get drunk. He said less so in the time leading up to his arrest. He acknowledges that he smokes marihuana daily.

He has participated in drug and alcohol programming while in custody. [ 14 ] Mr. DeBeck reached out to the victims and recorded in the presentence report update that Mr. Obdosantos continues to suffer from the trauma of the robbery. He is anxious and on high alert as a result. He would like compensation of $400 for the loss of the shoes. While P.D’s wounds have healed, his mom reported to Mr. DeBeck that his life has been affected. He struggles with anxiety and it impacts his sleep, his ability to socialize, and he is no longer comfortable when he leaves his home.

Both P.D. and his mom were traumatized by these events. [ 15 ] Crown's position is a global sentence of a 12-month custody and supervision order followed by a one-year probation order for all

three offences running concurrently. That equates to eight months or 240 days in custody with a four-month or 120-day supervision component and then a 12-month probation order.

The Crown is seeking ancillary orders including a DNA order pursuant to s. 487.051 which is mandatory for aggravated assault and robbery, a weapons order under s. 109 of the Criminal Code , and a non-communication order pursuant to s. 743.21(1) of the Criminal Code . [ 16 ] Defence counsel takes the position that the appropriate sentence for these offences if E.Z.O. had not served time in custody would be a nine-month custody and supervision order, or 270 days, which would break down to six months, or 180 days, in custody, and three months, or 90 days, under supervision.

He proposes a stand-alone order for restitution in Information 24393 requiring E.Z.O. to pay $400 to Mr. Obdosantos under s. 42(2)(

e) of the YCJA . [ 17 ] Both counsel agree that E.Z.O. should be credited one on one for 141 days in custody as of today's date, which is November 2nd.

Both counsel agree I should apply a global sentence with the robbery and breach to run concurrently with the longer sentence for aggravated assault. [ 18 ] The sentencing objectives are set out in s. 3(1) of the YCJA which provides that measures taken against a youth must be fair and proportionate and should reinforce respect for societal values, encourage the repair of harm done to victims, be meaningful for young persons, and involve extended family members, the community, and social or other agencies in the young person's rehabilitation and reintegration, and respect gender, ethnic, cultural, and linguistic differences. [ 19 ]

Section 38 of the YCJA provides that the purpose is to hold young persons accountable through the imposition of just sanctions that have meaningful consequences and that promote rehabilitation and reintegration into society thereby contributing to the long-term protection of the public. [ 20 ] Section 38(3) addresses mitigating and aggravating circumstances and directs the court to take into consideration the degree of participation in the offence. In this case, E.Z.O. acted alone in two of the three offences and with a group in the failure-to-comply offence.

The court must also consider the harm done to the victims. In this case, there was serious intentional harm to both Mr. Obdosantos and P.D. who sustained extensive injuries requiring a CAT scan, staples, and admission to hospital. P.D. was stabbed in the head and E.Z.O. continued to strike him when he was on the ground. The court must also consider any reparations made to the victim or community. At this point, there have been no reparations. However, E.Z.O. has offered to pay Mr. Obdosantos.

It is apparent that E.Z.O. has some insight into the harm done and feels remorse. [ 21 ] The court must also consider the time spent in detention as a result which, in this case, is significant. Furthermore, E.Z.O. has not served any prior custodial sentence which is another consideration.

The court must consider previous findings of guilt and, in this case, that includes E.Z.O.'s record from January which included two prior assaults. [ 22 ] Counsel has also asked me to consider that E.Z.O. was 16 at the time of these offences and submits that this attenuates his moral blameworthiness as do the difficulties E.Z.O. has faced in his childhood in that he was separated from his family. He experienced significant instability in his life. He has experienced a lack of parental figures and the opportunity to form bonds.

He has experienced developmental challenges and his autism diagnosis, which results in interpersonal challenges. Furthermore, he entered guilty pleas at an early stage which relieved the victims of testifying and saved the expense of a trial. It is acknowledged that this is significant. [ 23 ] Other aggravating factors I am asked to consider include the fact that E.Z.O. was subject to an Intensive Support and Supervision Order at the time of all of these offences. He breached his conditions during the commission of these offences.

Crown has asked me to consider that there were elements of premeditation with respect to the robbery. He arranged the meeting and brought spray to get the Air Jordans without paying for them. With respect to the aggravated assault, he walked into a restaurant with a weapon. He said he felt threatened, but on the facts that have been detailed, there was no immediate threat to him. I am also asked to consider that P.D. is a youth; and that Mr.

Obdosantos was just trying to sell a pair of shoes and did nothing to deserve being sprayed in the face, as E.Z.O. himself has acknowledged. [ 24 ] I find that an appropriate sentence for the aggravated assault of P.D., taking into consideration the sentencing objectives under the YCJA , all of the mitigating and aggravating circumstances that I have been asked to consider, including E.Z.O.'s unique circumstances, and the seriousness of the aggravated assault and the resulting injuries, is a 12-month custody and supervision order.

However, I find I must take into consideration the fact that E.Z.O. has by now served 141 days in custody or just over four and a half months which is a significant period of time. E.Z.O. will get credit for time served of 141 days, and I am going to impose a further five- month custody and supervision order. This will result in E.Z.O. serving two-thirds of that time in open custody and the remaining one- third under supervision. [ 25 ] The Crown is asking for a 12-month probation order.

I am concerned, given all the challenges that E.Z.O. is facing, that he will require a longer term of supervision in the community than proposed by Crown counsel. In the result, I am going to impose a 15-month probation order. [ 26 ] For the robbery, I am sentencing E.Z.O. to 99 days which will be served concurrent to the sentence for the aggravated assault. There will be no credit for time served on the robbery.

I am imposing a 15-month probation order to follow. [ 27 ] For the breach, I am sentencing E.Z.O.to a 15-month probation order which will be concurrent to the probation order for the other offences. [ 28 ] While under supervision in the community, s. 97 of the YCJA sets out conditions that are mandatory, and they include the following. [ 29 ] E.Z.O., you must keep the peace and be of good behaviour. [ 30 ] You must report to your youth worker and be under the supervision of the Provincial Director by way of your youth worker.

[ 31 ] You must inform your youth worker immediately on being arrested or questioned by the police. [ 32 ] You must report to the police or any named individual as instructed by your youth worker. [ 33 ] You must advise your youth worker of your address of residence and report immediately to your youth worker any change in that address; in your occupation, whether it is employment, vocational, or educational training, or volunteer work; in your family or financial situation; or any other changes that may reasonably be expected to affect your ability to comply with this conditions of the sentence. [ 34 ] You must not own, possess, or have the control of any weapon, ammunition, prohibited ammunition, prohibited device, or explosive substance, except as authorized in writing by the Provincial Director or your youth worker for the purpose of a young person participating in a program specified in the authorization. [ 35 ] As for the proposed probation order terms, I find that E.Z.O. should be required to attend school or employment and obey the rules of his residence.

Each of those requirements are specifically geared to promote rehabilitation and reintegration as required by the YCJA and to keep the Spectrum Learning Resource staff and E.Z.O. safe and functioning. [ 36 ] Defence counsel also submits that I should not require E.Z.O. to attend treatment as required by his youth worker.

The Crown suggests that such treatment would be directed at providing E.Z.O. tools to deal with his challenges including his mental health diagnosis, again, to bring into effect the principles of the YCJA and to assist in E.Z.O.'s rehabilitation and reintegration as a productive member of society. The Crown points out that this is not a Rogers order, but will permit the mental health workers to assist him.

She further points out that the psychiatrist mentions that he needs mental health involvement to ensure there is not a significant mental health disorder and suggests counselling with respect to emotional reactivity and therapy directed at his poor decision-making processes that led him to engage in criminal behaviours.

Given this, I am prepared to include the treatment provisions of the proposed probation order terms. [ 37 ] Therefore, the probation order terms that I am imposing are as follows: [ 38 ] Number one, E.Z.O., you are to keep the peace and be of good behaviour. [ 39 ] Number two, within 72 hours of your release from custody, you must report in person to a youth worker at 250-800 Hornby Street in the City of Vancouver, the Province of British Columbia, and thereafter as and when directed. [ 40 ] Number three, you must reside as directed by your youth worker and obey all the rules and regulations of that residence and not change your residence without obtaining the prior written permission of your youth worker. [ 41 ] Counsel are not asking for a direction as to where he should reside; is that right? [ 42 ] CNSL J.

MCPHERSON: That's right. [ 43 ] THE COURT: You are to attend school daily and on time and/or seek and maintain employment as directed by your youth worker. [ 44 ] You are to attend for and participate in any assessment, treatment, counselling, or programming as directed by your youth worker, including but not limited to that which is offered through Youth Forensic Psychiatric Services. [ 45 ] You must not have any contact directly or indirectly, including by way of phone, email, text, Instagram, Facebook, or any other social media with Christopher Obdosantos or P.D. except for the purposes of participating in the Restorative Youth Justice Conferencing Program. [ 46 ] You must abstain absolutely from the possession and consumption of drugs scheduled under the Controlled Drugs and Substances Act , except by way of a medical prescription and then only in the dosage prescribed. [ 47 ] You shall not possess any knives except for the immediate preparation and consumption of food or at your place of lawful employment. [ 48 ] You shall not possess any weapons or imitations of weapons as defined in the Criminal Code of Canada . [ 49 ] You shall not be found at any residence, place of employment, or place of education of Christopher Obdosantos or P.D. [ 50 ] You shall not possess any bear spray, pepper spray, dog spray, or other forms of oleoresin capsicum. [ 51 ] For the first 90 days of this order, you shall be inside your residence from 10 p.m. to 6 a.m. the following day, seven days per week, except with the written permission of your youth worker.

Any permission you receive from your youth worker must be carried on your person when you are outside your residence and presented immediately to a peace officer upon demand. [ 52 ] During your curfew, you must immediately present yourself to the door of your residence upon the demand of a peace officer to monitor compliance with your curfew. [ 53 ] You must attend and participate in the Intensive Support and Supervision Program at the direction of your youth worker. [ 54 ] You shall not possess any pellet guns, BB guns, or CO2 guns or associated ammunition. [ 55 ] The DNA order that is being sought is a mandatory order, and so I am making that order, as is the weapons prohibition for a two- year period. [ 56 ] I will make a stand-alone restitution order.

E.Z.O., you must pay to Mr. Obdosantos the sum of $400.

[ 57 ] E.Z.O., you are ordered to serve a five-month custody and supervision sentence. Two-thirds will be served in custody to be followed by one-third to be served under supervision in the community subject to the conditions I outlined. If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period of your sentence in custody, as well. You should also be aware that under the provisions of the YCJA a court could require you to serve the second period in custody.

The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence. [ 58 ] Counsel, are there any clarifications that are required? [ 59 ] CNSL T. MARTIN: The only thing that occurred to me, Your Honour, is the probation that attaches to the robbery. Is that going to start while he is still in custody from the aggravated assault or will that -- that should probably start when he is -- at the same time as the probation for the aggravated assault. [ 60 ] THE COURT: Upon his release -- [ 61 ] CNSL T.

MARTIN: Upon his -- [ 62 ] THE COURT: -- no, upon his -- [ 63 ] CNSL T. MARTIN: The end of the supervision portion of the aggravated -- [ 64 ] THE COURT: Yes. [ 65 ] CNSL T. MARTIN: -- assault, the CSO. [ 66 ] THE COURT: Yes, so at the end of the custody and supervision order, the probation order will commence. [ 67 ] CNSL T. MARTIN: Yes, other than that, nothing, Your Honour. [ 68 ] CNSL J. MCPHERSON: The only thing I'd like to ensure is that the record will reflect the 141 days as credit. [ 69 ] THE COURT: Time served? [ 70 ] CNSL J.

MCPHERSON: Yes. [ 71 ] THE COURT: So, Madam Clerk, we will note that. [ 72 ] CNSL J. MCPHERSON: Crown is directing a stay of proceedings on the balance of the counts. [ 73 ] CNSL T. MARTIN: And I know Your Honour did specify this, but someone in the gallery was just wanting clarification that it is open custody. [ 74 ] THE COURT: It is open custody. I think I did specify that at least once -- [ 75 ] CNSL T. MARTIN: Thank you, Your Honour. [ 76 ] THE CLERK: Your Honour, may I confirm, is the signature waived on the youth? [ 77 ] THE COURT: I think it should be reviewed. [ 78 ] CNSL T.

MARTIN: I think it'll be easy enough for him to get a copy at YDC and sign it there. [ 79 ] THE COURT: I think so. So, no, we will not waive it. [ 80 ] THE CLERK: Yes, Your Honour. [ 81 ] THE COURT: It will be helpful to him, as well, to review the terms at that time. [ 82 ] All right. Thank you. (REASONS FOR SENTENCE CONCLUDED)