R. v. Kakakaway Date:, 2017 BCPC 342

Citation: R. v. Kakakaway Date: 20171101 2017 BCPC 342 File No: 96180-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAKOTA MORNINGSTAR KAKAKAWAY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. Martin Counsel for the Accused: C. Teillet, A/S M. Gervin Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 1, 2017

Date of Judgment: November 1, 2017 [ 1 ] THE COURT (ORALLY) : Lakota Morningstar Kakakaway (“Ms. Kakakaway”) is before the court today for sentencing on Information 96180-1. This is a single-count Information sworn on June 30th of 2016 alleging that Ms.

Kakakaway , on or about the 22nd day of June, 2016, at or near Coquitlam, in the Province of British Columbia, did commit assault of James Paulger, a Coast Mountain transit driver, contrary to s. 266 of the Criminal Code . [ 2 ] That matter came before me for trial, there was a trial, and ultimately at the conclusion of the trial, after hearing submissions and considering the evidence and the applicable law, I found Ms. Kakakaway guilty of the offence with which she is charged.

Thus, she is now before the court to answer for the criminal conduct that was found to have been committed by her at the trial. [ 3 ] The Crown proceeded against Ms. Kakakaway summarily. I will give the briefest

summary of the facts and circumstances. CIRCUMSTANCES OF THE OFFENCE [ 4 ] Ms. Kakakaway , on the offence date of June 22nd of 2016, had been drinking, one might say drinking excessively, in a park with a friend. She and the friend fell into disagreement with each other. The disagreement degenerated into conflict, and ultimately the friend sprayed Ms. Kakakaway with some bear spray. Emergency Services were called by someone, and attended near the park where this was happening, having been alerted to the altercation. Ms.

Kakakaway was attended to by Emergency Services workers and her person was cleansed as much as possible of the residual bear spray through the application of water. So she was treated medically, so to speak, for the bear spray, but she was not, at the conclusion of having been cleansed by Emergency Services workers, left entirely free of the discomfort and the symptoms associated with a bear spray attack. From there she made her way, eventually, to the Braid Street bus stop and in due course boarded a bus whose driver was the complainant and victim, James Paulger. [ 5 ] Ms.

Kakakaway was in a state of anger and upset as a result of what had happened earlier with her friend. She took her place on the bus and announced to all willing to listen that she was going to be riding the bus free. She said some other profane and inconsiderate things while on the bus, making herself something of a spectacle and making her conduct a source of concern to Mr. Paulger. Mr.

Paulger, as a Coast Mountain transit bus driver, naturally had a responsibility to safeguard his passengers to ensure that the bus could be operated in a manner that was safe for all within it and all who might be affected by its movements outside it. [ 6 ] Given this belligerent behaviour on the part of Ms. Kakakaway , Mr. Paulger ultimately determined, after travelling a short distance in the bus, that he could not permit Ms. Kakakaway to remain on the bus and be satisfied that he could operate it safely.

He could not be satisfied that he, or other members of the public, or other persons on the bus could be properly safeguarded against coming to harm with an unruly and disruptive and I think visibly intoxicated and very angry and belligerent passenger on board. So Mr. Paulger directed that Ms. Kakakaway get off the bus at the next stop. [ 7 ] Ms. Kakakaway did get off the bus, but not before spitting in Mr. Paulger's face.

Her contention during her testimony was that her spitting was an involuntary act, triggered by the discomfort of having a residue of bear spray -- noxious, painful bear spray -- in her mouth, making it impossible for her to prevent herself from reflexively, involuntarily spitting it out to cause the noxious sensation to abate. The contention that her actions were involuntarily were belied by the direction in which she spat and the court at trial was simply unprepared to accept that defence evidence. [ 8 ] The saliva struck Mr. Paulger, the driver, directly in the face.

The fact that he was wearing glasses at the time afforded him, fortuitously, some protection, but his face was covered with saliva. Some of it, as I recall, made its way into his eyes, although there was no evidence to suggest that Mr. Paulger experienced any sensation of burning that might be attributed to the presence of bear spray in the saliva. Ms. Kakakaway , after spitting in Mr. Paulger's face, left the bus. [ 9 ] There then followed a lengthy and troubling succession of events that had to be undertaken by Mr. Paulger given the assault that he had experienced.

He had to meet with transit authority employees who deal with incident management. He had to be taken to a hospital in Chilliwack to be checked out. Steps had to be taken to cleanse his face and body of bodily substances that had been caused to land on his face and body by Ms. Kakakaway when she spat in his face. There was a period of time when diagnostic and other measures had to be performed in order to answer questions about whether or not Mr. Paulger had, through this incident, been subjected to infectious or other deleterious components in Ms.

Kakakaway's saliva. [ 10 ] Ultimately, after a period of weeks, all of the results of that testing came in and to Mr. Paulger's relief he learned that he had not been exposed to any disease-carrying elements in the saliva that Ms. Kakakaway spat in his face. That is not to say, however, that he did not live for a period of time in some fear and some uncertainty about the potential long-term health implications of Ms. Kakakaway's actions. EFFECT OF OFFENCE ON VICTIMS [ 11 ] I think that is a sufficient

summary of the facts, the circumstances of the offence, and so I turn from that to the effect of the offence on the victims. I have not received a victim impact statement from Mr. Paulger personally, but I think I can fairly infer from the evidence at trial and from the submissions made on this sentencing that this was a traumatic experience for Mr. Paulger in every sense, including traumatic in the sense that the assault committed by Ms.

Kakakaway against him was demeaning. [ 12 ] As some of the cases cited to the court by counsel today underscore, while it is true to say that spitting, when done by someone who is not suffering a communicable disease, may be said in some respects to rest at a lower point than others on a hierarchy of forms of assault, there are unique and special characteristics of spitting which judges repeatedly acknowledge. It is a most demeaning form of assault. It carries a social message that other forms of assault do not carry.

And then, of course, for so long as the possible health implications are unknown, the victim of such an assault lives with fear and trepidation that there may be long-lasting and potentially very serious health consequences of this form of assault. So as counsel for the Crown emphasized in her submissions, and as Ms. Teillet I

think quite fairly and candidly acknowledged, while there are assaults that we can all imagine that rank higher on that hierarchy, spitting has its own unique attributes and those attributes define its importance for the purposes of a sentencing in a way that is specific to spitting. I approach the question of sentencing Ms.

Kakakaway being quite mindful of those cases and, with respect, the sensible treatment that they give to spitting as a unique and particularly odious form of assault. [ 13 ] All of what I have said, I think, leads me to draw reasonable inferences about the significantly traumatic and humiliating and demeaning experience that Mr. Paulger underwent on the offence date. [ 14 ] Beyond that, I have been provided with a so-called community victim impact statement presented by Crown counsel and authored by a representative of the Coast Mountain Bus Company. It is a three-page document.

It is a detailed account of, in general, the continuing recurrence of assault offences of various kinds against public transit drivers in this jurisdiction. It confirms that there is a serious problem with transit operators being mistreated by persons who seek to make use of transit services and, distressingly, spitting on transit operators is a form of mistreatment of transit operators that is occurring at alarming rates. We see spitting incidents enumerated in this community victim impact statement and the numbers are hovering between 40 and the mid 50s, annually.

They reflect somewhere between the mid 30s to the low 40s, percentage-wise, of all of the incidents that occur on public transit. So there is a constituency out there of transit users who seem to believe that if they are in any way unhappy with or dissatisfied with anything that happens on a bus, an acceptable way for them to express their unhappiness or their disagreement is to spit on the driver.

This is a source of very real concern to the Coast Mountain Bus Company (whose letter I have been provided) and this, frankly, should be a source of very great concern to all of us. [ 15 ] Public transit is an important part of our societal infrastructure. Drivers of transit vehicles provide a very significant service to the community as a whole. As has been emphasized in submissions and in the cases, they are uniquely vulnerable, and this letter from Coast Mountain Bus Company drives all of those points home in the most clear of ways. [ 16 ] I have read this community victim impact statement carefully.

I consider it to be a helpful contribution to the exercise that I am called upon to perform here. I will say more about some of the elements of that inasmuch as they arise in the cases that talk about, for example, the uniquely vulnerable position in which a transit operator finds himself or herself -- in effect locked in a three-sided cage with very little in the way of opportunity to escape the mistreatment that might be meted out against him or her by a disaffected member of the public. CIRCUMSTANCES OF THE OFFENDER [ 17 ] I turn to the circumstances of the offender. Ms. Kakakaway is an indigenous person.

She comes from an indigenous community: the White Bear First Nation. She is now 22; she was 21 at the time she committed the offence against Mr. Paulger. While there is no Gladue report for me to draw upon in addressing the implications of her aboriginal status for sentencing, Ms. Teillet has provided much in the way of oral submissions of what one would expect to find in a Gladue report. [ 18 ] I will acknowledge straightaway, as the Criminal Code , among other things, requires me to do, that Ms. Kakakaway’ s aboriginal status is a factor and a consideration that must be borne in mind in sentencing her.

The Criminal Code contains an express direction that that be done. Cases like Gladue and Ipeelee and others that are well-known to everyone present today, also contain forceful admonitions that no aboriginal offender be sentenced in a way that is not properly mindful of some shameful features of our history in Canada, shameful features that speak to the degradation of persons of indigenous heritage. Ms. Teillet used the terms "colonization" and "colonial practices" and so on, a number of times in her submissions.

Unquestionably, individuals who are of indigenous heritage have found themselves disproportionately represented in penal institutions. That is a disproportionate presence that persists to today. They have been disproportionately disadvantaged in terms of the services that we normally think of as part of ordinary life in Canada.

The ravages of the residential school system have exacted a terrible toll on aboriginal Canadians, and we know that the mistreatment of residential school students resonates through succeeding generations; it cascades, if you will, downward from generation to generation, replicating again and again the adverse consequences of what some have described as cultural genocide. [ 19 ] The result, for sentencing purposes, is that as has been emphasized in defence submissions, the moral blameworthiness of aboriginal offenders for the offences they commit is attenuated, in part, because of their disadvantaged circumstances.

This is said again and again in the cases. I do not need to refer to the cases by name. I do not need to cite the

section of the Code . I do not consider any of this to be controversial. In summing up on this point I simply say I have in mind Ms. Kakakaway 's aboriginal status, and the adverse consequences of that status for her, as I go about the process of sentencing her. [ 20 ] Ms. Teillet gave me a lengthy account of Ms. Kakakaway 's antecedents, her current family circumstances. I cannot, in the time available, give a full rendition of all of the detail.

I will say that when we talk today about residential school survivors and the implications of their experiences for succeeding generations, it is not just a case of acknowledging a general phenomenon in our society; this is something that is actually reflected in Ms. Kakakaway's own life experience. She has family members one or two generations distant from her who were residential school attendees and the effects of their experiences have indeed been transmitted down the generations to Ms. Kakakaway herself. I do not think I need to go into the details; that is well-documented in what was said by Ms.

Teillet. [ 21 ] Happily, Ms. Kakakaway , despite the ravages of these systemic factors in her life, finds herself in a reasonably well-adjusted and happy family situation at the present time. She did not grow up fully in touch with her aboriginal heritage, but she has more recently become acquainted with that heritage and is on a voyage of exploration to come to a better understanding of it and to incorporate it into her life. There are examples that have been given of how she has done that. [ 22 ] Ms.

Kakakaway has struggled with a combination of mental health and substance abuse challenges over the course of her lifetime. She began drinking alcohol at the age of 13 and continued until about a year ago. She displays some of the clinical profile associated with Fetal Alcohol Syndrome Disorder. She was assessed at a reputable facility dealing with that condition and a number of diagnostic conclusions were reached that speak to some constraints and limitations on her learning, on her verbal intelligence, on her impulse control, on her ability to manage her behaviour.

[ 23 ] Ms. Kakakaway comes before the court with a troubling record, although as Ms. Teillet is at pains to emphasize, all of the entries on the record flow from events of some years ago at a time when she was a youth. But as is plain from a review of the record, there are violent offences in Ms. Kakakaway’s history. The fact that they are offences that were committed while she was a youth and some years ago does impair the meaning and significance of her record for today's purposes to a degree. But, there are entries in the record that must nevertheless be taken into account and into consideration.

There are robbery convictions, there is an assault with a weapon conviction, along with a number of property offences and one breach. This is, I repeat, a somewhat dated record but a nevertheless relevant record. [ 24 ] Ms. Kakakaway reports, through her counsel, that she has experienced racism herself in her day-to-day life. She is struggling with some limitations acknowledged in the Asante Centre report, but there is also evidence of progress being made in terms of getting her life on track and finding employment. It is part-time employment but it is productive and has been in place for a period of months now.

Ms. Kakakaway, to her credit, has taken some proactive steps to address some of the underlying causes of her offending. As is acknowledged, she was intoxicated on the occasion when she spat in the face of Mr. Paulger. Not long after her conviction, she took the necessary steps to enrol in and participate in residential treatment aimed at giving her some new skills in managing her substance abuse problems, and it is reported in submissions today that Ms. Kakakaway has been clean and sober for a period of just a little more than 12 months as of today's sentencing.

MITIGATING AND AGGRAVATING FACTORS [ 25 ] I turn then from the circumstances of the offender to the mitigating and aggravating factors that must be borne in mind in relation to the process before me. While it is not precisely a mitigating factor, as I have said already, Ms. Kakakaway 's aboriginal status is a factor that urges restraint upon the court in sentencing her for the odious offence for which she was convicted. [ 26 ] It is submitted that the absence of an adult criminal record is a mitigating factor.

I am not sure I would quite characterize it that way but I am mindful of the fact that we are dealing with a criminal record that is well back in Ms. Kakakaway 's history and every conviction on it occurred or was made at a time when she was a youth. [ 27 ] The self-motivated, proactive steps taken by Ms. Kakakaway to address underlying causes for her criminal actions are mitigating and I treat those steps as such. She embedded herself in a social circle consisting of family and non-family. These are people that she can reach out to and does reach out to as a way of keeping her life orderly and lawful.

I view that as the end product of proactive effort that is properly seen as mitigating. [ 28 ] Ms. Kakakaway has been waiting for sentencing for almost a year and has not committed any other offences in the interval that has passed between the time of her conviction and now. That is a mitigating factor, in my view. [ 29 ] Ms. Kakakaway has made, through counsel, sincere expressions of remorse for her actions, for her actions towards Mr.

Paulger and she has, through counsel's submissions and through her own actions as described in counsel's submissions, shown a considerable amount of insight into what led to her offending and into what will lead to a life of lawful behaviour going forward. [ 30 ] There are aggravating factors that must be considered alongside the mitigating factors, and we start with a statutory aggravating factor that addresses rather closely the specific parameters of the matter before the court today. That is s. 269.01 of the Criminal Code . When a person like Ms.

Kakakaway commits an assault against a public transit operator, those very circumstances have been expressly acknowledged by Parliament as being aggravating. I will read the section: When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(

a) or any of sections 266 to 269, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty. [ 31 ] This is a codification of common law references to the uniquely vulnerable circumstances in which transit operators do their daily work as an aggravating factor.

The fact that Parliament has gone so far as to elevate that aggravating factor to a special statutory status, I interpret to be a forceful admonition to sentencing judges to pay particular attention to the unique contours of cases involving transit operators -- operators who, as has been mentioned before, play a vital role in our societal infrastructure but who play that role in circumstances where they are uniquely vulnerable and where the statistics tell us their vulnerability is capitalized upon by unthinking and mindless conduct of the kind committed by Ms. Kakakaway and apparently 110 other people in 2015.

So this aggravating circumstance attains a much higher status in the sentencing equation than it might otherwise because Parliament has chosen to isolate this particular type of offending for an express admonition, and we see that in s. 269.01 . [ 32 ] At common law it is aggravating to use violence when committing an offence. Not too much emphasis should be placed on that because the offence itself is an offence of violence and Ms. Kakakaway is answerable for a violent offence.

A sentencing judge must be careful not to create a double entry for violence by citing that as aggravating, but I acknowledge that many cases do treat the use of violence as an aggravating factor. [ 33 ] It is aggravating at common law for an offender to show a callous disregard for the harm caused by his or her actions. I think it is fair to say that that is a proper characterization of Ms. Kakakaway’ s actions when she spat in the face of Mr. Paulger whose job required him, quite frankly, to eject her from the bus because she was creating conditions that were unsafe. [ 34 ] Ms.

Kakakaway 's actions, I say again, were not only harmful to Mr. Paulger but held the potential to produce a calamitous outcome for other members of the public: those on the bus and those using the roads near the bus. A bus driver who is interfered with in this way when performing his or her daily duty must still be able to keep his or her attention focused on operating the bus safely for the benefit of all. Interfering with a bus driver's daily work in a violent way, even when the bus, as in this case, was at a stop, holds significant potential risk for harm. Ms.

Kakakaway did exactly that, and she is answerable for having done that. PURPOSES, OBJECTIVES AND PRINCIPLES OF SENTENCING

[ 35 ] I am not going to give a lengthy recital of the purposes, objectives and principles of sentencing; they are well-known, and they have been referred to in detail in the submissions before me. I will comment that, of course, s. 718 requires, as to fundamental purpose, that the sentence I impose upon Ms. Kakakaway contribute, along with crime prevention initiatives, to respect for the law and to the maintenance of a just and peaceful society by imposing just sanctions. The objectives of sentencing are enumerated in s. 718.

In my view denunciation, deterrence and rehabilitation feature particularly prominently in this case. [ 36 ] I want to dwell a moment on denunciation and deterrence because I think this is an area where there is a sharp division between the submissions of counsel on either side. [ 37 ] This behaviour of spitting in the face of a bus driver with the responsibility for safely operating a bus requires emphatic formal condemnation. That is what denunciation is. The sentence I impose must denounce Ms. Kakakaway’ s conduct in the most clear terms. [ 38 ] The sentence must deter Ms.

Kakakaway from committing future offences of this kind, and I will pause and say that as to specific deterrence, I am satisfied by the submissions I have heard that the likelihood of future offending of this kind on the part of Ms. Kakakaway appears to be relatively small.

In making that statement I am acknowledging again the steps that she has taken to address underlying factors and the progress she has made toward turning her life into a lawful and productive life. [ 39 ] But there is another feature, another aspect of deterrence that really did not feature very prominently in defence submissions but was rather prominent in the submissions of Ms. Martin on behalf of the Crown. That is general deterrence. The sentence I impose upon Ms. Kakakaway must operate to exert downward pressure on the likelihood that others may commit offences of the kind Ms. Kakakaway committed.

Parliament has made that crystal clear in s. 269.01 . Ms. Martin, in her submissions, placed heavy emphasis on that notion, and quite rightly so. The community victim impact statement tells the court that if not an epidemic, there is certainly an alarming propensity on the part of transit users to assault bus drivers. An alarming number of them seem to feel that they can spit in the faces of bus drivers. Not all of them, I should think, come unencumbered by communicable diseases. Still, this is a very serious and seemingly intractable problem in our society.

People have to stop spitting in the faces of bus drivers and assaulting bus drivers in other ways, and the court has to play its proper role in sending a message to the community at large that those who do engage in this odious behaviour are going to answer for their actions in a way that is properly proportional to the magnitude of the societal harm that their conduct brings with it. General deterrence, in my view, is weighted rather heavily in the sentencing equation for Ms. Kakakaway [ 40 ] Rehabilitation is also an element that deserves special mention in my discussion here of the enumerated objectives. Ms.

Kakakaway has made a creditable effort to get her life on track. She needs to continue in that way, and the sentence that I impose must include features that will augment her own self-initiated actions and sustain them and build on them. But there must also be some protective conditions built in that will afford a sense of safety and security and peace of mind to Mr. Paulger and others who do his important work that they will not come to harm at the hands of Ms. Kakakaway. [ 41 ] Proportionality. A lot was said about that in the course of submissions.

I think it is plain from what I have said that notwithstanding that it requires a somewhat nuanced assessment, spitting, as a form of assault, is a form of assault of some considerable gravity. The degree of Ms.

Kakakaway 's responsibility for her actions is considerable, although attenuated in part by the Gladue factors that featured prominently in defence submissions, and by her limitations as reflected in the Asante assessment. [ 42 ] I am not unmindful of the fact that Parliament exhorts sentencing judges to not deprive offenders of their liberty if less restrictive sanctions may be appropriate in all the circumstances. I have that in mind, and I most certainly have in mind as well s. 718.2(

e) which (as I have said) provides that all available sanctions, other than imprisonment, should be considered for all offenders, with particular attention to aboriginal offenders. [ 43 ] These are all the factors and considerations I have to bear in mind in ultimately coming to a conclusion about what the sentence should be for Ms.

Kakakaway in these circumstances. [ 44 ] The law must evolve in a coherent fashion, and that means that judges must do their best, while tailoring a sentence to the individual contours of an individual case, to be properly mindful of the direction and the advice and the guidance that can be gleaned from looking at what other judges have done in other circumstances. No two cases are the same. There is no case out there that is on all fours, as they say, with Ms. Kakakaway 's case.

All of the cases that have been drawn to my attention and handed up offer guidance but no clear direction. [ 45 ] I am not going to spend a lot of time summarizing the cases that have been presented. They have all been helpful to me in one way or the other. They acknowledge, for example, the uniquely vulnerable character of a transit operator. That is something that Parliament has seen fit to enshrine in s. 269.01 . They go into some detail in addressing the demeaning and humiliating aspect of spitting as a form of assault.

That comes through loudly and clearly. [ 46 ] The cases seem to cover a rather broad range when we look at the actual sanctions imposed, and Ms. Teillet was able to point the court to some involving assaults in the form of spitting that attracted sentences of the kind she urges upon the court, namely, a conditional discharge. Ms. Martin's cases for the Crown, not surprisingly, show that sentences of incarceration, even as high as six months, are also there in the authorities for the court to consider. None of the offenders in the cases that have been presented to me match up terribly closely to Ms.

Kakakaway , and neither do the circumstances, so these offer guidance but no, I say again, clear direction. POSITION OF COUNSEL [ 47 ] So what are Crown and defence asking me to do? [ 48 ] Crown urges the court to impose a 30-day period of incarceration, followed by a 18-month period of probation with a number of conditions that address underlying causes in the sense that there is a counselling condition suggested. Protective conditions to keep Ms. Kakakaway at a distance from Mr.

Paulger are recommended; indeed Crown goes so far as to call for an order that would not permit her to travel on Coast Mountain Bus Company vehicles for a period of 18 months. Crown seeks an ancillary order with respect to the

collection of a sample of DNA. [ 49 ] For the defence, on the other hand, Ms. Teillet asks the court to conditionally discharge Ms. Kakakaway and place her on a 12- month period of probation with what I would say are more skeletal conditions. Certainly, she urges that there be nothing in the nature of a prohibition against travelling on public transit. SENTENCE [ 50 ] The proper disposition lies somewhere between the two. With all respect to Crown's helpful and persuasive submissions, in my view, having regard to the unique features of Ms.

Kakakaway and her circumstances, her aboriginal status, the disadvantages that attach to it, the progress that she has made in addressing underlying causes, the gap in time between the commission of her last offence and the commission of this offence, the imposition of a 30-day period of incarceration as a sentence would be excessively harsh. But with all respect to the submissions of Ms. Teillet, also ably presented, for the court to conditionally discharge Ms.

Kakakaway for spitting in the face of a bus driver in the course of his duty, in circumstances where a calamitous outcome could well have resulted, would not, in my view, be in the public interest. It would undoubtedly be in the interest of Ms. Kakakaway which is one branch of the s. 730(1), conditional discharge test, but the public's interest, which is so plainly acknowledged in s. 269.01 , would be poorly served by a decision that conditionally discharged Ms. Kakakaway in these circumstances. [ 51 ] Bus drivers are, at the end of the day, ordinary citizens like everyone else.

What distinguishes them from many of us is that in order to do their daily work they have to place themselves in positions of considerable vulnerability. This is somewhat counterintuitive: it is not obvious that they are placing themselves in situations of considerable vulnerability because the vulnerability comes as a result of hideous conduct on the part of offenders like Ms. Kakakaway. A traffic flagger places himself or herself in a position of vulnerability but there is a different level of assumption of risk built into that career choice.

You are on a busy highway, perhaps in difficult visibility circumstances. That is another category of victim who has sometimes been mistreated by others in the course of duty, and the courts recognize that offending of that kind calls for significant sanctions. You would not have thought at first blush that simply saying, "I'm prepared to undertake a career as a bus driver," involved an assumption of risk of the sort reflected in the statistics in the community victim impact statement, but that is the sad truth in the society that we live in.

A sizeable number of people every year feel that they have the right and the ability to take out their frustrations in the most odious ways on bus drivers. When that happens, bus drivers need to know that the way courts deal with that kind of offending is materially going to contribute to the improvement of that situation, for their benefit and for the benefit of society as a whole.

That is a long way of saying bus drivers are entitled to expect courts to attach sanctions to this kind of conduct that have reasonable prospects of effecting true deterrence so that the assumption of risk that enters into their daily work lessens and so that the risk that they will suffer at the hands of people committing offences like Ms. Kakakaway's offence diminishes with time. [ 52 ] So Ms.

Kakakaway , I'm going to ask you to stand, please. [ 53 ] After giving due regard to the careful and well-presented submissions of both Crown and defence, and after considering all of the factors that I am required to consider in sentencing you today for the offence of assault of James Paulger on the 22nd of June, 2016, I sentence you to a 14-day period of incarceration, followed by a 12-month probation period. [ 54 ] THE ACCUSED: [indiscernible] my job. [ 55 ] THE COURT: I come to the -- [ 56 ] THE ACCUSED: Please, sir, can you please not.

Please. [ 57 ] THE COURT: I come to the terms of probation which will take effect following your release from custody at the end of your 14-day sentence. [ 58 ] You must keep the peace and be of good behaviour, and appear before the court when required to do so. [ 59 ] You must report in person to a probation officer at 2610 Mary Hill Road, Port Coquitlam, British Columbia, and thereafter as and when and in the manner directed by your probation officer. [ 60 ] On the first occasion of your reporting you must provide your probation officer with your address and telephone number, and not change either without first obtaining the written consent of your probation officer. [ 61 ] You must have no contact or communication, directly or indirectly, with James Paulger. [ 62 ] You must not be found within a one-block radius of any residence, place of education, or place of employment known to you for James Paulger. [ 63 ] You must enrol in, participate in, and complete such counselling as your probation officer directs and to the satisfaction of your probation officer. [ 64 ] You must not be found on any public transit vehicle operated by the Coast Mountain Bus Company.

Now, pausing there, I really mean this to be buses, just buses. Perhaps I better use the word "bus". On any bus operated by the Coast Mountain Bus Company. [ 65 ] This is as regards a DNA order, this is a -- [ 66 ] MS. TEILLET: Sorry, Your Honour, I note that she -- a DNA order has already been taken for Ms. Kakakaway on one of her youth offences. I don't know if a new order is necessary. [ 67 ] THE COURT: Ms. Martin?

[ 68 ] MS. MARTIN: I know they were some -- quite some time ago, so sometimes we don't know what happens with the samples. It's a very uninvasive (sic) test, it doesn't take very long to be done. [ 69 ] THE COURT: This submission comes up occasionally when people have been convicted in the past of other offences and DNA has been taken.

It is a relatively minimal intrusion into the zone of privacy with a disproportionately high benefit that attaches to having a reliable resource in the way of a databank that assists not only in ensuring that those who should be convicted of offences are, but assists those who are wrongfully accused to have a means of exonerating themselves. So I am going to require that Ms.

Kakakaway provide a sample of her DNA, and I believe that sample will be taken when she is taken into custody at the institution, or will it be taken by the sheriffs here? [ 70 ] THE SHERIFF: Your Honour, it will be taken downstairs, and if she's already a known offender on the system it's just a set of fingerprints that have to be taken to satisfy that the DNA is hers. [ 71 ] THE COURT: All right. You will cooperate with the sheriffs in the courthouse here with respect to the DNA order I have made today. [ 72 ] Were there any other ancillary orders you were asking for? [ 73 ] MS.

MARTIN: The only thing, I may have missed it, I don't know if Your Honour wishes to impose no weapons as part of the probation order, or not? [ 74 ] THE COURT: No weapons? All right.

You are not to have in your possession, either personally or through another person, any firearm, imitation firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or anything that resembles a weapon or a firearm, or any authorizations, licenses or registration certificates held by you. [ 75 ] Other than the victim fine surcharge, I think that brings us to the end of the process. [ 76 ] MS.

TEILLET: Your Honour, with respect to the victim fine surcharge, a period of incarceration would mean that my client has lost her employment, and so we ask that it be waived and served forthwith today. Thank you. [ 77 ] THE COURT: Ms. Martin? [ 78 ] MS. MARTIN: I take no position. [ 79 ] THE COURT: Ms. Teillet, I have, based on your submissions, a high degree of confidence that Ms. Kakakaway will, if she is not able to persuade her employer to keep her on staff, find new employment.

So, rather than burden her with another entry on her record, I am going to give her two months to pay the victim fine surcharge, two months following the date of her release from custody, believing that she will be able to pay it. [ 80 ] Now, Ms. Kakakaway , let me just leave you with some words in closing. The Crown was seeking a 30-day period of incarceration; your counsel was seeking a discharge. Where we landed was with a 14-day period of incarceration. You are answerable for your offence in that way, followed by a period of probation.

In deciding not to grant the Crown's request that you be placed in custody for a period of 30 days, I took into account all of the things I mentioned about your heritage, about your hard work in getting yourself sorted out as regards alcohol abuse and so forth, believing that you have begun a process that will continue when you are released from custody. You have every reason to expect your life to continue in a law-abiding and productive way after you have answered fully for your conduct when you were on the bus with Mr. Paulger. So I want to wish you well on the journey you have started.

You have to take your medicine, and then pull yourself together and move forward, and I will say that I have every belief that you can and will do that. (REASONS FOR SENTENCE CONCLUDED)