R. v. M.B., 2023 BCPC 232

Citation: R. v. M.B. 2023 BCPC 232 Date: 20231024 File No: 9524 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. M.B. PUBLICATION BANS PURSUANT TO S. 517(1) OF THE CRIMINAL CODE OF CANADA AND S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. McQUILLAN Counsel for the Crown: A. Blunt Counsel for the Defendant: G. Garih Place of Hearing: Port Coquitlam , B.C. Date of Hearing: September 13, 2023 Date of Judgment: October 24, 2023

[ 1 ] On November 10, 2021, M.B. attacked J.S. with an axe, striking him twice in the back of the head, and twice more after he fell to the ground. This attack resulted in J.S. sustaining serious injuries to his skull and to his right hand. [ 2 ] M.B. has pled guilty to one count of aggravated assault contrary to s. 268(1) of the Criminal Code . He is now before the Court to be sentenced. [ 3 ] The Crown is seeking a sentence consisting of a five month Custody and Supervision order pursuant to section 42(2)(

n) of the Youth Criminal Justice Act (“ YCJA ”), followed by 12 to 18 months of probation. The Defence is seeking a non-custodial sentence, by way of an Intensive Support and Supervision Order for a duration of two years, which includes a curfew, restitution and community work service. [ 4 ] The issue that I must determine is what is a fit and just sentence for M.B., upon a consideration of the circumstances of this offence, his personal circumstances, statutory sentencing principles, and prior sentencing cases. [ 5 ] I will discuss each of those in turn.

Circumstances of the Offence [ 6 ] The circumstances of the offence were agreed upon in writing by Crown and Defence counsel and filed in the form of written Admissions of Fact. Those admissions may be summarized as follows. [ 7 ] On November 10, 2021 at approximately 7:30 PM, J.S., then age 15, arrived at the Burquitlam Skytrain station with a group of male and female friends. They planned on walking to a nearby Safeway. [ 8 ] M.B. was present at the Burquitlam Skytrain station when J.S. and the others arrived there.

He was visiting the lower mainland from his home in Alberta but had previously lived in the Coquitlam area. He and J.S. had previously had a dispute with one another during the time that he had previously lived there. [ 9 ] While walking towards the Safeway, J.S. and most of the other individuals walked ahead, while M.B. and one of the females from the group walked behind.

While they were walking, M.B. believed that an argument was starting that was connected to the prior dispute between him and J.S. [ 10 ] M.B. removed his backpack and handed it to the female with whom he was walking, but before doing so, he removed an axe from the backpack. He then struck J.S. twice in the back of the head from behind. J.S. fell to the ground and attempted to protect himself by placing his hands over his head. M.B. continued to swing the axe and struck J.S. two more times, while M.B. was yelling, “Don’t talk shit”.

J.S. did not have anything in his hands. [ 11 ] Two of the females attempted to intervene, with one trying to grab the axe from M.B. M.B. then swung the axe towards her, while saying, “Don’t fucking touch me.” [ 12 ] M.B. then grabbed his backpack and ran away from the scene. He climbed onto the roof of a nearby business where he discarded the axe. He then contacted his mother in Alberta who arranged for a family friend, J.R., to pick him up. [ 13 ] J.R. picked up M.B. at approximately 8:30 PM and drove him to meet J.R.’s son. During the drive, J.R. asked M.B. what was wrong and why he needed to be picked up.

M.B. replied by saying that he had “put an axe in some kids’ head”. When he asked M.B. what he was doing with an axe, M.B. replied by saying, “I was hunting him”. (I note that despite this written admission, at the sentencing hearing his counsel submitted that he actually said to J.R., “I was hurting him”. In my view, for purposes of sentencing, little turns on this discrepancy.) [ 14 ] J.R. did not initially take M.B.’s replies seriously. However, later that evening he contacted the police after hearing a radio transmission that the police were looking for a suspect that matched M.B.’s appearance.

M.B. was arrested later that night. [ 15 ] Following the assault, J.S. was rushed to Royal Columbian Hospital where he was diagnosed with two skull fractures and associated minor brain bleed, as well as sliced tendons and a broken bone in his right hand requiring surgery. The photograph of his right hand taken at the hospital reveals a deep gash to the base of his thumb that almost severs his thumb. [ 16 ] J.S. prepared a Victim Impact Statement. In that statement, he describes that he had to undergo surgery following the assault to re-attach his thumb.

He has since undergone several sessions of hand therapy to get his hand back to normal function. He remains unable to bend his thumb, has lost 50% of his thumb functionality, and has a permanent disability because of it. [ 17 ] In terms of emotional impact, J.S. describes himself as feeling paranoid and unable to trust people since the assault. He is now always fearful and sometimes carries a knife to protect himself. He remains scared for his and his family’s safety. He finds it difficult to focus on his schoolwork and has missed school and his grades have dropped.

He has undertaken counselling to deal with his anxiety and fears. Personal Circumstances of the Offender [ 18 ] M.B.’s personal circumstances are described in a Pre-Sentence Report, Psychiatric Assessment and a Gladue Report.

[ 19 ] M.B. was 16 years old at the time of this offence. He is now 18. [ 20 ] Shortly after M.B.’s birth, his father suffered a brain injury from a suspected drug overdose. After that he was largely absent from M.B.’s life. His father recently passed away. [ 21 ] When M.B. was three years old, his mother married Mr. L. who thereafter acted as his stepparent. [ 22 ] When M.B. was seven, the family moved from British Columbia to Alberta. His sister, C., was born in Alberta and is now ten years old.

His mother is [omitted for publication] and his stepfather is [omitted for publication]. [ 23 ] M.B.’s mother describes that he grew up in a home filled with abuse and trauma. He regularly witnessed physical and emotional abuse between his mother and stepfather and was himself sometimes the object of physical abuse. There was a history of significant involvement by child protective services with the family in both British Columbia and Alberta. [ 24 ] M.B.’s maternal grandparents had significant involvement with him while he was growing up and even brought him on vacations to Japan, Disneyworld and Atlanta.

They were later prohibited by his mother and stepfather from having any contact with M.B., but they eventually successfully obtained access to him through the Courts. [ 25 ] When he was 14, M.B. stopped playing hockey and lacrosse and began using, and eventually selling drugs. His mother describes this as a time when the abuse in her marriage was at its peak.

She said that this resulted in him having difficulty understanding how to treat people with respect and not act out physically. [ 26 ] In June 2018, at the request of his mother, M.B. moved in with his maternal grandparents in Coquitlam due to alleged physical abuse from his stepfather. While residing in Coquitlam, he remained out of school, as his mother did not sign over temporary guardianship to his grandparents to permit him to attend.

Eventually his grandparents obtained a court order permitting them to enrol him in school. [ 27 ] In April 2019, M.B. returned to live in Alberta with his mother and sister after his mother separated from his stepfather. However, after they reconciled in September 2019 his mother kicked him out and he began a period of couch surfing and sleeping in parked vehicles. During that period, it appears that his drug use escalated because in December his mother found him in possession of pills and thousands of dollars.

His mother then signed a PChAD (Protection of Children Abusing Drugs) Order to have him taken involuntarily to a protective safe house for detoxification, stabilization and assessment. He was in detox for 15 days and transitioned to a supported recovery environment for six months. During his stay there, he received a psychological assessment, which diagnosed him with PTSD because of the abuse he witnessed and experienced in his home.

After his discharge from the treatment centre, M.B. lived for several months with his grandparents in Coquitlam. [ 28 ] In September 2020, M.B. returned to Edmonton to live with his mother and sister following another separation between his mother and his stepfather. M.B. has continued to live there, both before and since this offence. [ 29 ] Both his mother and his grandparents express the view that M.B. has matured and has learned from his mistakes as a teenager.

His mother says that he helps with his sister and contributes financially to supporting their household. [ 30 ] While he never had a relationship with his biological father, M.B. has developed a relationship with his father’s side of the family, and visits with his aunts, uncles and grandma on the reserve during the summer. He is a status member of the [omitted for publication] on his father’s side and holds a status card. He otherwise has little information regarding his Indigenous community.

He believed his community to be located on Vancouver Island, but the Gladue report writer learned that in fact it is located in [omitted for publication]. B.C. He has attended traditional funerals and ceremonies but otherwise does not participate in Indigenous ceremony or spirituality.

He is impacted by a number of the intergenerational and contemporary impacts on Indigenous communities that are referred to as Gladue Factors, including physical abuse, loss of parenting skills, fractured families, normalization of violence, substance abuse, mental illness, low level of employment, loneliness, abandonment and dislocation from culture, community and family. [ 31 ] M.B. attended school through grade seven.

However, due to his chaotic life, suspension from school due to incidents with peers, and attending different schools, he was absent from school for long periods and missed all of grade eight and nine. He is currently enrolled in a school in Edmonton which permits him to complete high school credits in person and online. He is currently working on Grade 11 and 12 courses and plans to graduate by January 2024. He attends in person learning on days that he does not have work. I note that the Psychiatric Assessment expresses some uncertainty as to whether he is in fact currently attending school.

However, a letter from the [omitted for publication] filed at the sentencing hearing confirms that he is enrolled there for the present school term of September 2023 to June 2024. The letter does not however, refer to any previous enrolment there. [ 32 ] M.B. began working when he was 15 years old. He currently works as a line cook and has previously worked as a dishwasher and counter attendant. He is currently working about 30 hours per week. He hopes to work towards becoming a power line technician once he has completed high school. [ 33 ] In the past two years, M.B. became a practicing Muslim.

He attends the Mosque every Friday and follows the belief system of not introducing any “poison” into his body. That includes no drugs, alcohol or anything addictive. [ 34 ] M.B. has a significant history of substance misuse. He first used alcohol at age 11 and escalated to using opioids when he was 14. He says that he has tried most drugs, and that his drug of choice was opioids, although in the Psychiatric Assessment he denied the use of drugs other than opioids, marijuana and Xanax. He has also been hospitalized for overconsumption of alcohol.

Since completing the treatment program in Alberta he has not used drugs and was not under the influence of drugs or alcohol at the time he committed this offence. His mother confirms that he does not currently drink, take drugs, or party. He does not believe that he has a need for substance abuse treatment. [ 35 ] While he was in the treatment facility in Alberta, M.B. was diagnosed with PTSD, and also exhibited symptoms of major

depressive disorder. He has attempted suicide by hanging himself and by intentional drug overdose in the past. He is not currently in counselling, nor is he seeing anyone for his mental health. He feels that his mental health is “good” right now, and also feels that he is now less impulsive and more patient than he was in his early teenage years. [ 36 ] M.B. has no criminal record, youth or otherwise. [ 37 ] In terms of his attitude towards the offence, M.B. accepts responsibility.

However, he appears to harbour some blame towards the victim, stating that J.S. and the others took his backpack from him, which included $125 and a bag of marijuana. I note that this assertion is at odds with the Admissions of Fact that he agreed to. When he was asked by the psychiatrist how the victim was doing, he responded that the victim “is still doing what he used to do”, displaying no emotional reaction and little empathy when he said this. He maintains that he did not plan the offence, despite the fact that he was carrying an axe in his backpack.

He does not believe that the victim deserved what happened to him and M.B. wishes that he had just walked away. [ 38 ] The Psychiatric Assessment sets out factors that would tend to increase, and factors that would protect against the risk of future violence by M.B. The factors applicable to him that would tend to increase the risk are his history of parental separation, rejection by his biological father (and indeed his stepfather too), disconnection from his Indigenous culture, ongoing exposure to violence in his home, non-attendance at school, and addiction at an early age.

His most prominent risk factor is that he committed a very serious violent offence that could have resulted in death, with little explanation for his motivation, thus displaying a lack of insight and self-awareness. [ 39 ] The protective factors are: the support of his family and grandparents, the lack of criminal behaviour since the offence, and his ability to obtain and maintain a job. The assessment cautions that he may be at continued risk of lashing out unexpectedly or out of proportion when he feels that he has been pushed to the brink. Statutory Sentencing Principles [ 40 ]

Section 3 of the YCJA sets out the foundational principles underlying the criminal justice system for young persons. It provides for a system that is separate and distinct from adult offenders and is based on the principle of diminished moral blameworthiness or culpability, with an emphasis on rehabilitation and reintegration. Accountability for the young person must be proportionate to the seriousness of the offence and the degree of responsibility of the young person, taking into consideration the greater dependency of young persons and their reduced level of maturity.

Measures taken against young persons who commit offences should reinforce respect for societal values, encourage the repair of harm done to victims and the community, and be meaningful for the young person, given their needs and level of development. [ 41 ] Sentencing decisions for young persons must align with the purpose of sentencing described in s. 38(1) and the principles set out in s. 3 and s. 38(2).

Section 38 provides as follows: Purpose 38

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

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; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(

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. Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account (

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 and principles set out in this section. [ 42 ] Unlike with adult sentencing, general deterrence is not a relevant principle to be considered in sentencing young persons. [ 43 ]

Section 39 describes the conditions that must be present for the Court to impose a sentence of incarceration on a young person. The relevant portions of that

section state as follows: Committal to custody 39

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

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; ……………… [ 44 ] Parenthetically, I note there is no dispute that the actions of M.B. constitute a “violent offence” and as such give rise to a consideration of a custodial sentence. Alternatives to custody

(2) If any of paragraphs (1)(

a) to (

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

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

section 38. Factors to be considered

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. …………………….. Custody as social measure prohibited

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures. Pre-sentence report

(6) Before imposing a custodial sentence under

section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel. ………………… Length of custody

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in

section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under

section 94.

Reasons

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1)……………….. [ 45 ] Section 42(2) of the YCJA sets out the range of sanctions available to a Court in sentencing a young person. The portions of that

section that may be relevant to the sentencing before me are as follows: Youth sentence

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other ……………………. ………………………………… (

e) order the young person to pay to any other person at the times and on the terms that the court may fix an amount by way of compensation for loss of or damage to property or for loss of income or support, or an amount for, …………….., special damages, for personal injury arising from the commission of the offence if the value is readily ascertainable, …………….. ………………………………. (

i) subject to

section 54, order the young person to perform a community service at the time and on the terms that the court may fix, and to report to and be supervised by the provincial director or a person designated by the youth justice court; (

j) subject to

section 51 (mandatory prohibition order), make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made under it if an accused is found guilty or convicted of that offence, other than an order under

section 161 of the Criminal Code ; (

k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years; (

l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director; (

n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; …………… (

s) impose on the young person, in accordance with paragraph 38(2)(e.1), any other conditions that the court considers appropriate. Sentencing Case Law [ 46 ] The Crown and Defence each rely on a number of cases, which they say support their respective sentencing positions. I will first summarize the Crown cases. [ 47 ] R. v. S.N.J.S ., 2013 BCCA 379 : That case involved a sentencing appeal of a young person who had been sentenced to an 18- month custody and supervision order following a conviction for manslaughter.

The young person was 16 when she committed the offence, which occurred following a dispute with the victim at a party where they had both been drinking. The argument between the two escalated to the point that they became involved in a physical fight that resulted in the young person stabbing the victim, causing her death. The sentencing judge concluded that S.N.J.S. was at low risk to reoffend and that a custodial sentence was not necessary for rehabilitative purposes but that a custodial sentence was nonetheless required.

The Court of Appeal upheld the sentence, finding that while the YCJA is “offender-centric” in its emphasis on rehabilitation and reintegration, it also demands accountability and the imposition of a sentence that has meaningful consequences for the young person. The requirement to impose the least restrictive sentence needs to be read in conjunction with the requirement of accountability, which includes a consideration of the seriousness of the offence, along with the other purposes and principles of sentencing. [ 48 ] R. v.

R.R.J ., 2009 BCCA 580 : That case involved a sentencing appeal by a young person who had been sentenced to a one year custody and supervision order followed by two years of probation following a guilty plea to aggravated assault, assault and breach of an undertaking. The young Indigenous person was 17 years old at the time of her offending when she punched and kicked a woman, and on another occasion stabbed another youth when she had been drinking. Her life had been rife with family disruption and neglect and she had begun drinking at the age of 13.

The sentence was upheld by the Court of Appeal, with the exception of reducing the probationary period to one year to reflect the two-year maximum sentence prescribed by s. 42. [ 49 ] R. v. T.S.P ., 2018 BCPC 365 : In that case, the young person had been convicted at trial of aggravated assault. T.S.P. had stabbed another person multiple times with a folding knife at a party while the victim was held in a chokehold by someone else. The stab wounds to the victim were potentially life threatening.

The young person had been convicted of drug trafficking offences and was violating weapons and curfew conditions at the time of the offence. He was assessed as moderate to high risk to reoffend. He received a 15-month custody and supervision order followed by seven months of probation. [ 50 ] R. v. L.P ., 2012 BCPC 6 : This was a sentencing decision for a 15 year old who had pled guilty to aggravated assault and uttering

threats. L.P. had attacked a fellow student at school, running up behind him in front of other students and teachers and stabbing him at least four times before others pulled him off. He then left the scene but phoned the victim to taunt him while the victim was enroute to the hospital. The attack had clearly been planned. Prior to the assault he had also threatened to kill another individual if she called authorities. He was abusing hard drugs at the time of the offence, including crystal methamphetamine but had stopped using drugs by the time of sentencing.

He suffered from mental health issues at the time of the offence. He was considered low risk to reoffend. He received a sentence of two years’ probation, which included a curfew and 75 hours of community work service. [ 51 ] R. v. T.B ., 2008 BCPC 233 : This case involved the sentencing of a 17-year-old young person who had been convicted of aggravated assault in a swarming incident that involved several other participants who all beat the victim with sticks. The victim was seriously injured and spent several months in hospital, and would likely have significant permanent limitations.

T.B. was 19 at the time of sentencing, and was employed. He had no prior record. He was sentenced to a 42 week (10½ month) custody and supervision order followed by one year of probation. [ 52 ] R. v. F.B ., 2021 ONCJ 108 : This case involved the sentencing of a young person following a guilty plea to aggravated assault. F.B. and three others had attacked a student at school during the school hours. The victim attempted to intervene and the assailants turned on him, punching and kicking him, with F.B. stabbing him three times. He was 16 years old at the time of the offence and had no criminal record.

By the time of sentencing, he was employed, had completed 150 hours of community work service, and had apologized to the victim. The Court stated that custody is a last resort in youth cases, but that a non-custodial sentence is rare when a youth is convicted of aggravated assault by stabbing. The Court concluded that a custodial sentence was required and imposed a four-month custody and supervision order followed by 18 months of probation. [ 53 ] The Defence relied on several cases in support of its sentencing position. [ 54 ] R. v.

S.A.C. , 2008 SCC 47 : The Defence relies on this case from the Supreme Court of Canada for its direction that sentencing judges must exercise restraint when it comes to custodial sentences under the YCJA , as its sentencing regime was expressly created to reduce the over-reliance on incarceration of young persons. [ 55 ] R. v. K.D.T ., 2006 BCCA 60 : This sentencing case followed a conviction for manslaughter. The case is factually dissimilar to the case at bar, and is largely about the constitutionality of a particular provision of the YCJA relating to whether the individual should be sentenced as an adult.

It does however, note the lower sentencing ranges applicable to youths compared to adult offenders. The young person was ultimately sentenced as an adult by the Court of Appeal and received a sentence of two years less a day in custody, followed by two years of probation. [ 56 ] R. v. Nicholls , 2013 BCSC 1145 : This was not a youth sentencing case so is of minimal precedential value for the case at bar. The decision did however, involve the sentencing of a 21 year old young Indigenous adult for aggravated assault which involved an unplanned and impulsive stabbing of the victim with a three inch knife.

He received a non-custodial sentence by way of a suspended sentence with probation for 30 months. [ 57 ] R. v. Vainer , 2005 BCPC 279 : This case involved the sentencing of a very young adult who had just turned 18 at the time of the offence. He had committed aggravated assault of the victim by stabbing him three times in the chest, ribs and sternum. He received a Conditional Sentence of two years less a day. [ 58 ] R. v. Garnham , 2008 BCPC 85 : This is another sentencing of a young adult who was 19 at the time he inflicted serious and life- threatening injuries to the victim through a single blow with a knife.

The act was not premeditated and the offender had no prior criminal history. He received a Conditional Sentence of two years less a day, followed by three years of probation. [ 59 ] R. v. E.(M.), 2008 ONCJ 99 : This case involved the sentencing of a young person who was 15 years old when he committed the offences of assault and aggravated assault against two other youths. The aggravated assault involved a stabbing to the victim’s face causing a deep gash. M.E. had a troubled childhood, with his mother incarcerated for several months and his father being stabbed to death in front of him.

He spent periods of time in foster care. He received a three month deferred custody and supervision order followed by probation. [ 60 ] R. v. S.L., 2003 BCCA 563 : This case was a sentencing appeal by a young person who had been sentenced to six months imprisonment for aggravated assault. He was 17 years old when he had gone to the victim’s home to confront him about his belief that the victim had stolen from him. During their exchange he picked up a rock and threw it at the victim, striking him in the head. The victim suffered a skull fracture.

The attack was not pre-planned and S.L. immediately expressed remorse and misgivings to the police about his actions. He had prior youth convictions although none for violent offences. He had a difficult upbringing, spending periods in foster care. The Court of Appeal concluded that the throwing of the rock was properly characterized as

an act of bad judgment rather than as

an act intended to cause harm to the victim. Accordingly, it would have imposed a non-custodial sentence by way of an ISSP or a period of probation. Discussion [ 61 ] A theme throughout the sentencing provisions of the YCJA is that custodial sentences should only be imposed in limited circumstances and after all non-custodial options have been considered. The sentencing provisions are “offender-centric”, recognizing the reduced moral culpability of young persons, with an emphasis given to rehabilitation and reintegration.

However, the YCJA also directs sentencing judges to consider the importance of accountability and the imposition of meaningful consequences. Denunciation of unlawful conduct also remains an aspect of sentencing under the YCJA . [ 62 ] The BC Court of Appeal said in S.N.J.S . that the concept of accountability need not be overtaken by the more offender-centric concepts of rehabilitation and reintegration.

At paragraph 29 the Court stated: 29] “Accountability” is not defined in the Act , but must be understood in part to be concerned with the severity of the sentence in relationship to the seriousness of the offence. Holding a young person “accountable” must also be understood to include consideration of

whether the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society. While s. 38(1)(

d) and (

e) do require the Court to impose the least restrictive sentence possible, this does not mean, as the appellant contends, that the “least restrictive” requirement should be read independently from the other principles and purposes in the Act, particularly “accountability”.

This notion of accountability includes consideration of the seriousness of the offence and requires a sentencing judge to balance and match the rehabilitative needs of the young person, with the other purposes and principles of sentencing. [ 63 ] Thus, even where the principles of rehabilitation and reintegration favour a non-custodial sentence, sometimes the circumstances of the offence will require a custodial sentence to meet the meet the other purposes and principles of sentencing, including denunciation, accountability and the imposition of meaningful consequences. [ 64 ] In the present case, there are several aggravating circumstances that tend to increase M.B.’s moral culpability.

Those are the follows: a. There was an aspect of planning involved insofar as M.B. carried an axe with him in his backpack; b. He attacked M.B. from behind, when he was most defenceless; c. He struck J.S. multiple times, both on his head and his hand; d. The injury to J.S.’s hand was caused while he was lying on the ground, trying to defend himself with his arms; e. The injuries sustained by J.S. were extremely serious, could have resulted in death, and have resulted in permanent physical disability and likely long-term emotional scars; and f.

M.B. fled from the scene after the assault and attempted to hide the axe. [ 65 ] There are also a number of mitigating circumstances present, which I find to be the following: a. M.B. has pled guilty, which I understand was his intention from an early stage after these charges were laid. This is both an indication of his acceptance of responsibility and has the effect of sparing the victim and witnesses from testifying, as well as saving on scarce court resources; b. M.B. has no prior criminal record; c.

M.B. is Indigenous and has been impacted by many of the factors associated with the colonial legacy on Indigenous persons and its intergenerational impacts; d. M.B. has had a chaotic upbringing, which includes being exposed to and the victim of violence in his own home; e. Although M.B. has not been subject to any particularly restrictive bail conditions, it is nonetheless mitigating that he has not committed any new offences and has generally stayed out of trouble in the almost two years since this offence; and f.

Despite his chaotic upbringing, which has resulted in long absences from school, M.B. has demonstrated a strong work ethic and has maintained consistent employment for some time, the income from which he uses to contribute to his own family. [ 66 ] The various mitigating circumstances present are compelling and tend to favour a non-custodial sentence. However, the circumstances of this offence are so aggravating that I find a non-custodial sentence would not give sufficient consideration to the principles of accountability, imposing meaningful consequences and denunciation.

This was a serious, unprovoked attack on a 15 year old from behind with an axe which will have long-term impacts on the victim. [ 67 ] Upon a consideration of all the circumstances, I find that a custodial sentence is required. Anything less would fail to give consideration to all of the sentencing principles set out in the YCJA . [ 68 ] The question then is what duration would be a fit sentence. In my view, the sentence of five months sought by the Crown is a reasonable one, and consistent with both the applicable sentencing principles and case law.

However, I remain mindful of the requirement to impose the least restrictive sentence that is capable of meeting the sentencing purposes. A slightly shorter sentence than five months would minimize the disruption from the gains he has made in structuring his life in Edmonton with work, school and family. Thus, the sentence that I impose is a four month (120 day) custody and supervision order which will be structured as required under section 42(2)(

n) of the YCJA, with the first two thirds to be served in custody and the remaining one third to be under supervision in the community. [ 69 ] Stand please. [ 70 ] As such, you are ordered to serve 80 days in custody, to be followed by 40 days to be served under supervision in the community subject to conditions. [ 71 ] 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 in custody as well. [ 72 ] You should also be aware that, under other provisions of the Youth Criminal Justice Act , a Court could require you to serve the second period in custody as well. [ 73 ] The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.

[ 74 ] While you serve the community based portion of your sentence you must comply with the following conditions: (

a) keep the peace and be of good behaviour; (

b) report to the provincial director and then be under the supervision of the provincial director; (

c) inform the provincial director immediately on being arrested or questioned by the police; (

d) report to the police, or any named individual, as instructed by the provincial director; (

e) advise the provincial director of your address of residence and report immediately to the provincial director any change (

i) in that address, (ii) your normal occupation, including employment, vocational or educational training and volunteer work, (iii) your family or financial situation, and (iv) that may reasonably be expected to affect your ability to comply with the conditions of the sentence; and (

f) 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 for the purposes of the young person participating in a program specified in the authorization. [ 75 ] Following completion of the Custody and Supervision Order, you shall be subject probation for a period of 18 months, with the following conditions: • You must keep the peace and be of good behaviour. • You must appear before the Court when required to do so by the Court. • You must notify the Court or your youth worker of any change of name or address and promptly notify the Court or your worker of any change in employment or occupation. • You must report in person to a youth worker in Edmonton within two business days of completion of your custody and supervision order.

You must provide your Youth Worker with your residential address and phone number and not change either without the prior written permission of your youth worker. • You shall attend any assessments, treatment or counselling as directed by your youth worker, including but not limited to that which is offered through Youth Forensic Psychiatric Services. • You must have no contact or communication, directly or indirectly, with J.S. • 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. • You must not possess directly or indirectly any weapon as defined in the Criminal Code . • You must not possess any knives, axes, or any other sharp bladed instrument used, designed to be used, or intended to be used to cut things, except you may possess knives when preparing or eating food, or while at your place of employment, or travelling directly to or from your place of employment. [ 76 ] Pursuant to

section 51 of the YCJA , you are prohibited from possessing firearms for a period of five years. [ 77 ] Aggravated assault is a primary designated offence. As such, pursuant to s 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody. [ 78 ] There shall be an order for forfeiture of the axe pursuant to

section 490.1 of the Criminal Code . [ 79 ] Pursuant to s. 40(8), copies of the pre-sentence reports shall be made available to M.B.’s Youth Worker. _____________________________ The Honourable Judge R. McQuillan Provincial Court of British Columbia