R. v. A.L.A.W., 2021 BCPC 178 (CanLII)
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2021 BCPC 178 |
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File No: |
8775 |
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Registry: |
Kelowna |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
A.L.A.W.
Publication Ban, s. 110(1) of the Youth Criminal Justice Act: no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE G. KOTURBASH
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Counsel for the Crown: |
D. Grabavac, J. Deschamps |
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Counsel for the Defendant: |
J. Killoran, J. Jensen |
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Place of Hearing: |
Kelowna, B.C. |
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Dates of Hearing: |
June 18, July 5, 2021 |
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Date of Judgment: |
July 12, 2021 |
Introduction
[1] AW (“Ms W”) pled guilty as young person to the manslaughter of EB (“Mr. B”) on June 27, 2019.
[2] The Crown recommends a sentence in the range of 24-36 months, divided equally between custody and supervision.
[3] The defence recommends a sentence within the same range but without any portion of the sentence served in custody.
The Circumstances
[4] In June 2019, both Ms W and Mr B were entrenched street youths living in Kelowna. Both had difficult childhoods and struggled with alcohol- and substance-use issues.
[5] Ms W was 17-years-old and Mr B was 16-years-old.
[6] The two knew each other and despite some issues in the past, were friends.
[7] At 11:23 p.m. on June 27, 2019, police and ambulance received a call about a stabbing that occurred in an alleyway in downtown Kelowna.
[8] Mr B was located at the scene. He had two stab wounds to his right arm. One of the wounds, which was less than a centimetre, lacerated an artery, causing significant blood loss and eventually his death.
[9] Mr M witnessed the stabbing. He told police that Ms W and Mr B were yelling and swearing at each other. He said that Ms W was intoxicated and was accusing Mr B of drugging and raping her. Mr B denied doing so.
[10] During the verbal altercation, Ms W pulled out a knife and told everyone that they were safe and then stabbed the deceased twice in the arm. After stabbing him, Ms W said, “That’s what happens. You deserved it. Good”.
[11] MP also witnessed the two arguing. He said they argued for 10-15 minutes before Ms W lunged at Mr B, stabbing him in the arm.
[12] A final witness, MC, arrived after the stabbing. He asked Ms W what happened and she replied, “He’s never been stabbed before so I stabbed him twice”. He asked where she stabbed him and she replied on the arm.
[13] Ms W left the scene before the police and ambulance arrived.
[14] Ms W was arrested the following day. She told police she knew she was being arrested because she stabbed someone but blacked out and could not recall anything.
[15] The folding knife used by Ms W to stab Mr B was stolen by her the night before from a friend’s place and was left at the scene.
[16] The toxicology results from the autopsy revealed a large and varied amount of illicit drugs in Mr B’s body. Ms W self-reports and was described by others as highly intoxicated.
Victim Impact
[17] EB lost his life. His parents, grandparents and friends are left to mourn their loss. The impact has been devastating and life-altering. No sentence that I impose can come close to compensating them for their loss.
Circumstances of the Offender
[18] Ms W is 19-years-old and Métis.
[19] At the time of the incident, she was 17-years-old and in [omitted for publication] days, will be 20-years-old.
[20] Like Mr B, Ms W also had a difficult childhood.
[21] Ms W’s biological father was absent from her life. He was and remains a heavy drug user and has consistently been in and out of jail. Her mother's boyfriend was verbally and physically abusive to her mother and verbally abused Ms W.
[22] Despite her mother’s best efforts to provide for her family, Ms W grew up in poverty.
[23] She was sexually abused and as early as four-years-old, began self-harming and having suicidal thoughts.
[24] Over several years, she had multiple admissions to the hospital to address concerns about her harming herself.
[25] In 2013, she lost her grandfather, who she and others described was like a “father” to her.
[26] When she was in grade 8, her boyfriend committed suicide a week after they broke up.
[27] In grade 9, she began drinking alcohol. She would drink before school to help address her social anxiety.
[28] Again, despite her mother’s best efforts to steer Ms W back on track, she was unsuccessful and eventually told her she would have to move out.
[29] Ms W lived with friends, in the shelter and on the streets.
[30] Her consumption of alcohol escalated after she left home. She consumed on average two 26-ounce bottles of hard liquor per day. She financed her habit through prostitution.
[31] Her mother never gave up hope and even tried to get her daughter involuntarily admitted into the hospital but again was unsuccessful.
[32] Between 2015 and 2018, Ms W began attending Child and Youth Mental Health. She was provisionally diagnosed with oppositional defiance disorder, borderline personality disorder, major depressive disorder and obsessive compulsive disorder.
[33] She continued to struggle with alcohol- and substance-use issues and to self-harm.
[34] Off-and-on between 2018 and 2019, she met with an Okanagan Boys and Girls Club Outreach Mental Health Clinician. They worked towards ending her substance misuse, getting her off the street and reuniting her with her mother. During this time, she continued living a very transient lifestyle, frequently drinking and using drugs and engaging in prostitution to finance her habits. She also reports often being sexually assaulted while living on the streets.
[35] Mental Health Clinician Amanda Donaldson said Ms W’s mental-health issues got in the way of getting the help she needed because most service providers assumed that she was unmotivated. Ms Donaldson commented further that the lack of support for Ms W was particularly evident around the time of the incident, when she tried to get help but was given the “run-around”.
[36] On the streets, she continued to struggle with her alcohol-use disorder, consuming two 26-ounce bottles of hard liquor a day. She describes being intoxicated every day for two years before the incident. Her daily intoxication included blackouts and memory loss. She also occasionally used drugs like cocaine and crystal meth.
[37] Ms W describes frequently being sexually abused. The day before the stabbing, she was sexually assaulted, resulting in bruising to her wrists and legs.
[38] Following the incident, she was allowed to move back in with her parents as long as she did not drink, but she got drunk. At that point, she decided to re-engage with her former mental health clinician and asked for help. Her clinician described her as impressive and motivated to change. Arrangements were made for her to attend a treatment facility called Peak House Treatment Facility (“Peak House”). She started the program in October 2019 and graduated in January 2020. She did exceptionally well, was described as a role model and has been offered the opportunity to return as a guest speaker for the program. She also completed high school while there.
[39] Ms W wanted to attend another treatment program, was accepted, but her attendance was delayed because of COVID.
[40] After her time at Peak House, she moved back home to live with her mother and stepfather, but became concerned with the lack of structure and moved to Kamloops to live with her aunt and uncle and now lives on her own with some friends.
[41] She has remained sober, goes to AA regularly, volunteers at the Foodbank, waitresses and participates in yoga.
[42] She takes medication to help address her mental-health issues.
[43] She is actively engaged with her youth worker/caseworker. She continues to receive mental-health support through Youth Forensic Psychiatric Services Clinician Robyn Grattan.
[44] According to youth court worker Ms Harrison, there was a period where Ms W was not as engaged as one would expect. She frequently made up excuses to miss meetings, etc. Ms Harrison was uncertain whether these missed appointments were a symptom of her mental-health issues or a lack of commitment. I am told that she is now back on track and attending meetings regularly. She is actively participating in ways that are consistent with her work at Peak House and before moving to Kamloops.
[45] In preparation for sentencing, the court ordered the preparation of a psychiatric report. Dr Hosenbocus concluded that because of Ms W’s traumatic background and mental-health issues, she remains at continued risk for mental-health issues and addiction issues. He describes her as a low risk to re-offend as long as she remains sober and stays away from peers who drink or use drugs.
[46] He diagnosed her with several mental-health issues. They include:
• Attention hyperactivity disorder;
• Social anxiety disorder;
• Borderline personality disorder;
• Persistent depressive disorder;
• Oppositional defiant disorder;
• Severe alcohol-use disorder;
• Cannabis-use disorder;
• Parent-child relational problem; and
• Attachment injury.
[47] Although Ms W told Dr Hosenbocus that alcohol puts her in a good mood, Dr Hosenbocus noted that according to Ms W’s friends, she tends to be aggressive when drinking. He opines that she may have inherited these addictive, antisocial and aggressive genes from her biological father, who is currently serving a federal sentence.
[48] Psychologist Dr Burt also noted Ms W’s acknowledgment to him that it was possible that she had a modest history of physical aggression with her peers when she was heavily intoxicated.
[49] However, Dr Burt went on to note that there is no history of any serious violence and that police records describe her as non-violent. Dr Burt describes Ms W’s offending behaviour as “extraordinarily atypical that is grossly inconsistent with her known history”.
[50] Dr Burt says that despite Ms W’s chronological age, her maturity level is much lower and is consistent with someone in their mid-teens.
[51] Both the psychiatrist and the psychologist strongly recommend that the court not incarcerate Ms W.
[52] Psychiatrist Dr Hosenbocus writes:
Incarceration at a time when she is trying hard to get away from her previous life, is not recommended as it may shatter the trust that she has now developed towards a system that was not there for her when she was younger. Now that she is opening up, and wants to work with the system, the system also needs to be open to her, show compassion and work with her to help her become a productive citizen. A jail sentence at this time, would destroy what she has achieved so far, and wants to achieve in the future. It may give her a message that however hard she tries, she cannot make it as the past including the negative impact of her adverse childhood events, and mental health will always follow her. To help her, a trauma informed approach involves compassion not just punishment, as the people who did these things to her when she was young, are not made accountable.
[53] Psychologist Dr Burt starts by noting the remarkable change in trajectory and shift from her chaotic street and drug-based lifestyles. He expresses deep concerns that all of the traction to this point will be lost when he writes:
If a custodial sentence is considered, an important consideration would be the high likelihood that it would disrupt the present positive shift, and the present ability to actively expand and promote [Ms W’s] community supports and skills towards becoming a productive and prosocial adult in the community. In addition, given that she is deemed to be low risk, there would be no substantive gains to public safety by incarceration (at least over the next two years). In addition, a custodial sentence would have limited range of further reducing risk with an already low risk offender, but presents a reasonable risk to increase her risk (due to association and confinement with antisocial persons/peers).
[54] Instead of incarceration, both doctors recommend an intensive rehabilitation custody and supervision order, known as IRCS. They point out that an IRCS would provide a unique opportunity for Ms W to access services in the private sector, which are more suited to addressing her needs and are more readily available.
The Objectives and Principles of Sentencing
[55] The beginning of the Youth Criminal Justice Act (“YCJA” or the “Act”) provides that the criminal justice system for young persons must be separate from that of adults and must be based on the principle that young people, because of their different level of maturity and growth, have diminished moral blameworthiness or culpability for offences they commit.
[56] Section 3(1)(b) of the Act describes some of the characteristics that distinguish the youth criminal justice system from the adult system. In contrast to the adult system, the youth justice system places emphasis on:
• rehabilitation and reintegration; and
• proportionate accountability to reflect the limited maturity of young persons.
[57] The youth justice system’s greater emphasis on rehabilitation and reintegration is based on optimism about young persons. There is a long-held belief that young persons are more amenable than adults to changing their behaviour and therefore appropriate intervention is more likely to have a rehabilitative effect.
[58] The YCJA makes accountability and proportionality fundamental to decision-making under the Act. In general, this means that less-serious offences should result in lighter consequences and more-serious offences should result in heavier or greater consequences. However, accountability and proportionality in the youth justice system must reflect that young persons lack the maturity of adults. The recognition of the reduced maturity of young persons can be seen for example in the shorter maximum sentence lengths for young persons compared to the maximum sentence lengths for adults.
[59] The Supreme Court of Canada also says the recognition of the limited maturity of young persons is fundamental to the youth justice system. In R v DB, 2008 SCC 25, the court concluded that it is a fundamental principle of justice that young persons are entitled to a presumption of diminished moral culpability because they have heightened vulnerability and lack the maturity and the capacity for moral judgment than that of an adult.
[60] In 2012, Parliament included the objectives of specific deterrence (but not general deterrence) and denunciation; however, the reach of these objectives is limited by the proportionality principle, s 38.
How Does a Judge Determine an Appropriate Sentence?
[61] After assessing the seriousness of the offence and the offender’s degree of moral responsibility, the judge must determine an appropriate sentence. In this regard, the Act provides further direction for judges. For example, the sentence imposed must be:
• the least restrictive possible, s 38(2)(e)(i);
• the one most likely to rehabilitate and reintegrate the youth, s 38(2)(e)(ii);
• the one most likely to promote a sense of responsibility in the youth and an acknowledgement of the harm done to victims and community, s 38(2)(e)(iii);
• similar to sentences imposed in similar cases under the YCJA in the region, s 38(2)(b);
• no more severe than that which would be given to an adult, s 38(2)(a).
The Presumption of a Non-custodial Sentence
[62] Parliament has also put presumptions in place to ensure that judges think long and hard before incarcerating a young person.
[63] Before imposing a sentence, all reasonable non-custodial sanctions must be considered by the judge, s 39(2).
[64] Where, after consideration of all the objectives and principles of sentencing, either a non-custodial or a custodial sentence could be structured to be “proportional to the seriousness of the offence”, the non-custodial sentence must be imposed, s 39(2).
[65] The circumstances of young Indigenous people must be considered when determining whether a non-custodial sanction would be possible, s 38(2)(d).
[66] Like adults, the likelihood that the young person will comply with a non-custodial sentence remains an important consideration when determining whether there is a reasonable alternative to custody, s 39(3)(c).
Imposing a Custodial Sentence
[67] Even when a judge decides that a jail sentence is appropriate, they must ensure that the Act allows one to be imposed. Before the court can impose a custodial sentence, the case must meet at least one of the following four criteria:
• The youth committed a violent offence, ss 39(1)(a);
• The youth has failed to comply with two or more noncustodial sentences, ss 39(1)(b);
• The youth has a “pattern of extrajudicial sanctions or findings of guilt” and the youth has committed an offence for which an adult could be sentenced to more than two years, ss 39(1)(c);
• It is an “exceptional case” where the aggravating circumstances of the offence make it impossible to hand down a noncustodial sentence consistent with the principles outlined in 13.3, ss 39(1)(d).
[68] In the case at hand, manslaughter is a violent offence.
[69] However, even if one of the first three of these conditions is met, a custodial sentence cannot be imposed unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable and determines that none can be imposed consistent with the requirements of s 38, ss 39(2)-(4).
Sentencing Options
[70] Neither counsel submit that anything less than a custody and supervision order is appropriate. I agree.
[71] A custody and supervision order can be imposed in two ways:
• a custody and conditional supervision order not exceeding three years, s 42(0).
• an intensive rehabilitation custody and conditional supervision order not exceeding three years, s 42(r)(i)(b). An order for “intensive rehabilitative custody and supervision” is intended to provide an alternative for the most serious offences to ordinary custody and conditional supervision providing for the possibility of a jail sentence, followed by a high level of supervision and support in the community. This is a relatively expensive and intrusive sentencing option and there are significant statutory limits on when it can be ordered. The requirements that must be met are:
− the young person has been found guilty of a serious violent offence;
− the young person is suffering from a mental illness or disorder, a psychological disorder, or an emotional disturbance;
− a plan of treatment and intensive supervision has been developed and there are reasonable grounds that the plan “might” reduce the risk of the person repeating the offence of committing a serious violent offence; and
− the provincial director has determined that an intensive rehabilitative custody and supervision program is available and the young person’s participation in the program is appropriate, s 42(7).
[72] While there is no requirement for the consent of a young person to the making of an order for intensive rehabilitation custody and supervision, a youth justice court judge should only make such an order if there is an indication that the young person will participate in the treatment program being offered.
[73] If a young person under an intensive rehabilitation custody order is unresponsive to treatment or refuses to participate in the facility's treatment program where they have been placed, the Provincial Director may apply to a judge under section 94(19) to have the sentence converted into an ordinary sentence of custody and supervision. The total custody and community portions of the sentence are in accord with the original sentence.
[74] If a young person breaches a term of the order, they can be arrested and depending on the nature of the breach and other factors, a judge can order them to serve the remainder of their sentence in custody.
Similar Sentences
[75] The Act requires that the sentence imposed be similar to sentences imposed on similar young persons in the region who have been convicted of the same offence, committed in similar circumstances, and not be greater than the punishment that would be appropriate for an adult who has been convicted of the same offence in similar circumstances, s 38(2).
[76] I reviewed all of the cases provided by counsel. The range of sentences for manslaughter is broad.
[77] Not surprisingly, there are distinguishing features in all the cases. Some of those features include a conviction after trial, continued denial and lack of insight into the offending behaviour, different psychiatric and psychological makeup, and more egregious circumstances.
[78] The two cases that I found closest to the case at hand and somewhat instructive are Justice Barrow’s decision of R v SNJS, 2013 BCSC 852, affirmed 2013 BCCA 379, and Justice Keyser’s decision of R v MDC, 2004 MBQB 47.
[79] In SNJS, the accused was a 16-year-old Indigenous female who was convicted of manslaughter after a trial. The victim and her friends verbally abused the accused. Eventually, it led to a physical confrontation between the accused and the victim. The two exchanged blows and wrestled on the ground. During the altercation, the accused pulled a knife from her purse and said, “I’ll stab you”. The two started fighting again. The accused stabbed the victim in the neck and the victim continued approaching the accused. The accused stabbed her again on the collarbone, inflicting the fatal wound.
[80] The accused was intoxicated. Throughout the proceedings, even at the time of sentencing, the accused denied responsibility. She did not have a criminal record, did not have any mental-health issues, came from a good family background and was classified as a low risk to re-offend. She was 19-years-old at the time of sentencing.
[81] Like the case at hand, the experts in SNJS strongly recommended that the court not incarcerate the accused. Despite their recommendations, Justice Barrow imposed an 18-month custody and supervision order with the first nine months to be served in custody.
[82] Before imposing the sentence, Justice Barrow addressed the recommendations of the experts, stating at paragraph 62:
This case does, perhaps more than most, highlight the conundrum that Faulkner J. noted in the case I referred to above. Just sanctions must have meaningful consequences for a young person and must be assessed in light of the seriousness of the crime and the young person's degree of responsibility. That can and does on occasion conflict with what would be appropriate if rehabilitation and only rehabilitation were the goal of the process. A disposition that is served entirely in the community is not, in the circumstances of this case, in my view, sufficient to hold SNJS adequately accountable for her actions. Although I accept that stringent conditions imposed as part of a community-based disposition can be "meaningful," in this case, they would not be sufficiently meaningful.
[83] The case was appealed and the British Columbia Court of Appeal at R v SNJS, 2013 BCCA 379, commented further about the imposition of a jail sentence in the face of the strong recommendation by experts not to incarcerate. In affirming Justice Barrow’s decision, the court reiterated the importance of balancing all the objectives and principles of sentencing, and that rehabilitation was not the only consideration. The court writes at paragraphs 29-30:
"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. (See also Malcolm Thorburn, "Accountability and Proportionality in Youth Sentencing" (2009) 55 Criminal Law Quarterly, 304; but note the 2013 YCJA amendments post-date this article).
Here the judge did balance the obligation to impose the least restrictive sanction possible with the other sentencing principles and purposes. After a careful analysis of the mitigating and aggravating circumstances of the offence, he returned to his consideration of the guiding principles and purposes of sentencing in s. 38. He concluded that some period of incarceration, (over that already served, which met the statutory requirement in ss. 42(2)(o)) was necessary. …
[84] The important distinguishing features between Ms W’s case and the case of SNJS are:
• SNJS was convicted after trial and continued to deny responsibility;
• SNJS did not come from a disadvantaged background or suffer from any type of mental illness;
• SNJS stabbed the victim in a highly vulnerable area; but
• Unlike Ms W, SNJS was not the aggressor.
[85] In MDC, the 16-year-old accused pled guilty to manslaughter. The victim initiated the physical altercation by pushing the accused, causing him superficial injuries. The altercation was broken up, but the victim continued to confront the accused. As the confrontation continued, the accused felt his safety was threatened. He grabbed a knife once and stabbed the victim once in the back. The accused left the scene but returned to apologize. The victim died from the wound, much to the surprise of the accused. The accused did not have a record and his actions were not part of a pattern of violent behaviour. He was 18-years-old at the time of the offence.
[86] Justice Keyser did not impose a jail sentence and in doing so said the following at paragraph 14:
14 … It is clear that incarceration is not required either to specifically deter this young offender or to rehabilitate him. In fact, the incarceration of the accused might very well be catastrophic for him and militate against his becoming a useful and productive member of society. …
[87] This case also differs from the case at hand in the following respects:
• The accused was not the aggressor;
• He was not intoxicated;
• He stabbed the victim only once;
• The accused spent two years on stringent house arrest conditions, including 24-hour house arrest; and
• Denunciation was not an objective of sentencing in 2004.
Mitigating and Aggravating Factors
[88] In assessing the seriousness of the offence, Ms W’s offending behaviour and her moral culpability, I must consider and carefully weigh the aggravating and mitigating factors.
[89] The court in R v Badhesa, 2019 BCCA 70, describes this careful balancing in the context of manslaughter sentencing when it states:
[24] The offence of manslaughter encompasses conduct which has caused the death of another person and falls short of intentional killing. It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attach along a continuum within that spectrum. A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination. Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death: R. v. Plowman, 2015 BCCA 423at para. 40, citing R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 80; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290 at para. 247.
[25] The purpose of the balancing exercise is to ensure that the sentence fits the degree of the offender’s moral fault for the harm done by the unlawful act underlying the offence of manslaughter. The measure of the fitness of a sentence lies in the principle of proportionality: a sentence must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. If a sentence for manslaughter passes this fundamental test it is a fit sentence. If it does not, it is unfit: Stone at para. 233; R. v. LaBerge, 1995 ABCA 196at paras. 6–11; R. v. Draper, 2010 MBCA 35at para. 7.
[26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment. Given that wide range, the judge must carefully determine the degree of an individual offender’s moral culpability and craft a sentence that accounts adequately for the unique constellation of relevant factors present in a case. The task is complex and sometimes factors unrelated to where the unlawful act falls on the “near accident” to “near murder” spectrum nonetheless bear on the degree of the offender’s moral culpability. Where an offender falls on the spectrum of individual moral culpability is a question of fact. Absent palpable and overriding error, that finding is entitled to deference: Plowman at paras. 39, 44–45, citing R. v. Richer, 2005 BCCA 3; R. v. Engebretsen, 2016 BCCA 182at paras. 9–12, 17.
Mitigating Factors
1. Ms W entered a relatively early guilty plea;
2. Ms W wrote a heartfelt apology to Mr B’s family and wept throughout the proceedings. She expressed remorse to the professional that interviewed her and I am satisfied that her remorse for causing the death of Mr B, her friend, is genuine;
3. She lacks a prior criminal record;
4. Family support: Ms W has the strong support of her immediate and extended family; this support bodes well for future rehabilitation;
5. Disadvantaged background, including Gladue principles: The Crown argues that many of the problems experienced by Ms W are not connected to her Indigenous background. Although I disagree, it is a distinction without a difference. Offenders of any ethnicity whose childhoods were marked by violence, alcoholism, neglect, family separation and dysfunction are often left with a poorly-functioning moral compass, which can reduce their moral culpability. While some can persevere and rise above the crippling effects of their backgrounds, others cannot.
The experts point out that right from birth, Ms W was exposed to a tense and hostile environment. The myriad of trauma and mental-health issues identified by the professionals demonstrate that Ms W was one of those children who could not overcome the crippling effects of her childhood. As the experts point out, she missed out on any normal development associated with her mid-teenage years due to living a roughly two-year period of near-constant intoxication on the streets.
6. Intoxication: In R v Badhesa, 2019 BCCA 70, the court explains the interplay between mental illness and intoxication in manslaughter cases. The court writes, starting at paragraph 39:
Manslaughter, Mental Illness and Self-Induced Intoxication
[39] Intoxication by alcohol or drugs often figures prominently in manslaughter cases. While relevant to moral culpability, self-induced intoxication that leads to violence is typically the product of intentional risk-taking, which conduct is itself dangerous, irresponsible and blameworthy. In such circumstances, the offender is held fully accountable for his or her condition and principles of deterrence and denunciation are paramount in the determination of a fit sentence. This is because the offending conduct encroaches on our society’s basic code of values and warrants condemnation and punishment: Green at paras. 16, 19, 23.
[40] However, an offender’s volitional and decision-making capacity in connection with self-induced intoxication and related violence may stem, at least in part, from mental illness or other cognitive disability. Depending on the circumstances, both the mental illness and related self-induced intoxication may reduce the offender’s moral culpability. The criminal law views individuals as autonomous and rational beings and seeks to impose criminal liability solely on those who are responsible for the state they were in when an offence is committed: R. v. Bouchard-Lebrun, 2011 SCC 58at paras. 48, 68. Similar concerns animate the determination of a fit sentence: R. v. Friesen, 2016 MBCA 50at para. 18. Impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted from ordinary, fully accountable offenders for sentencing purposes: R. v. Ayorech, 2012 ABCA 82at para. 12. Where an offender is found to be criminally responsible, but suffering from a serious mental illness or disability, a more lenient disposition than would otherwise be called for may well be appropriate to reflect a diminished level of criminal responsibility: R. v. Ramsay, 2012 ABCA 257at para. 21.
…
[42] When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability is attenuated. In these circumstances, general deterrence is a less weighty consideration because a mentally ill offender is not an appropriate medium for making an example to others: R. v. Belcourt, 2010 ABCA 319at para. 8. Nor does specific deterrence or severe punishment play a significant role in the determination of a fit sentence. The former is meaningless when an offender is out of touch with reality and the latter may be disproportionate to the offender’s degree of responsibility: R. v. Batisse, 2009 ONCA 114at para. 38.
[43] Cases involving mental illness and intoxication in combination are, of course, intensely fact-driven. Detailed and specific medical evidence is essential to a proper understanding of their relationship in a particular case, if any, as well as their impact on the offender’s moral culpability. Generalizations are insufficient: Friesen at para. 25. In our view, insofar as possible, taking into account all of the relevant evidence, a sentencing judge should strive to determine the extent to which an offender’s mental illness contributed to the offending conduct, including any contribution to his or her self-induced intoxication: R. v. Ellis, 2013 ONCA 739at para. 116; Friesen at paras. 22–32.
[44] When assessing a fit sentence, the judge should attribute a degree of moral culpability to the offender commensurate with the magnitude of the mental illness and its overall role in the commission of the offence: Ramsay at para. 25. Where mental illness played a central role, the importance of deterrence and punishment should be given less weight and treatment and public protection concerns should be increased: Batisse at para. 38. This decreased emphasis on deterrence and punishment is consistent with the proportionality principle, which is the sine qua non of a just sanction: R. v. Safarzadeh-Markhali, 2016 SCC 14at para. 70; Ellis at para. 183.
[45] In his comments on specific deterrence the judge stressed that “[b]oth the accused and all other men need to know that the courts treat domestic violence seriously”. However, in the particular circumstances of this case, specific deterrence had little application. Nothing suggested a need to specifically deter the appellant from engaging in acts of domestic violence when he is mentally healthy. To the contrary, the uncontroverted evidence was that the appellant was normally a peaceful, loving husband and father who, once medically stabilized, was “completely beside himself” at his actions, fully appreciated their gravity and was strongly motivated to maintain his mental health so that he could return to his family.
[46] In summary on this issue, in our view the judge, when assessing moral culpability, did not consider the effect of the appellant’s mental illness on his consumption of alcohol and opium. Much like the offender in Friesen, the appellant suffered from a diagnosed mental disorder that interfered with his ability to reason, compromised his volitional and decision-making capacity and contributed to his state of self-induced intoxication, which attenuated the degree of his moral culpability.
In other words, it not necessary to find a direct causal link between a mental illness like depression and intoxication. An indirect link will suffice. Also see R v Forner, 2020 BCCA 103, at para 28.
Ms W began consuming alcohol at an early age. She started drinking to calm her social anxieties before going to school. She used alcohol to combat her depressive disorder, because, as she said, alcohol made her happy. This eventually led to her consuming an extraordinary amount of alcohol each day and a diagnosis by Dr Hosenbocus of severe alcohol-use disorder.
The conclusion that there is a causal link between mental illness and her alcohol consumption is virtually inescapable on the evidence. This is not a case of voluntary consumption of alcohol and intoxication. Assessed in this light, it diminishes Ms W’s moral blameworthiness.
7. Mental Illness: I am also satisfied on a balance of probabilities that Ms W’s mental illness played a role in her offending behaviour beyond its linkage to her intoxicated state. Ms W’s mental-health issues are broad and complex. Dr Hosenbocus diagnosed her with attention deficit hyperactive disorder, which as he points out, leads to poor impulse control, difficulties with self-regulation and poor executive functions. He also diagnosed her with oppositional defiance disorder, borderline personality disorder, and persistent depressive disorder, which I am satisfied resulted in her uncharacteristic actions that fateful evening.
Considering the emotional impact of her history of being sexually assaulted, including as recently as the night before, compounded with an already fragile and intoxicated mind, the claim that mental illness played a role in her offending behaviour is again inescapable.
8. Positive attitude on bail: there is a difference between an offender who merely does not get into any further trouble and one who takes extraordinary and positive steps in turning their life around. Ms W has gone beyond simply complying with socieital norms. Instead, she has developed a secure support network in the community; has actively engaged in counselling; attended treatment; relocated to remove herself from any negative peer groups; has stopped drinking; found suitable housing; and is gainfully empolyed. All of this demonstrates solid prospects for future rehabilitation.
9. Insight into offending behaviour and low risk to reoffend: Ms W has demonstrated insight into her offending behaviour; she attended treatment for her alcohol-use disorder and is engaged in other forms of counselling. She is described by the professionals as low risk to re-offend, provided she remains sober and distances herself from any negative peers. Her insight is an important consideration for me in determining what type of sentence is necessary to protect the public.
10. The nature of the injury: Where the nature of the offence is intrinsically dangerous (e.g. a kick to the head), the offender’s actions will be considered more aggravating, even where they did not anticipate the serious consequences. Stabbing a person with a knife is intrinsically dangerous and almost always likely to cause serious injury. However, Ms W did not stab Mr B in the area of the vital organs. Although not mitigating, it is less aggravating than the cases submitted where the stabbing was directed towards a vital organ.
11. Pretrial custody: The Act provides that pretrial detention should be considered when determining an appropriate sentence. However, it does not say how. If she were an adult, she would receive eight days’ credit for the five days that she spent in jail.
Aggravating Factors
1. A vulnerable victim: Mr B was grossly impaired by drugs and was therefore more vulnerable than if he had been sober;
2. Age of the victim: Mr B was only 16-years-old;
3. Introducing a knife when the other party is unarmed is aggravating;
4. Stabbing your victim more than once is aggravating;
5. Victim impact: the death of the victim is an element of the offence and should not be considered as a further aggravating factor; however, where the impact on others, including parents, is significant, it can be. In Cook, [2009] QJ No 15641 (CA), the Quebec Court of Appeal observed that the judge correctly considered the devasting impact the victim's sudden death had on her family as an aggravating factor;
6. Failing to render assistance or call for help: In R v Willier, 2008 ABCA 33, the court held that it was an aggravating factor that the accused did not call for help after stabbing the victim. I am not sure I agree with this characterization. Instead, the way I see it, like the absence of remorse, the failure to call for help is not aggravating, but is the absence of a mitigating factor. However, even if I am wrong, given the accused’s degree of intoxication and the presence of others at the scene, I would accord this factor little weight.
Conclusion
[90] This has been the most challenging decision I have ever had to make as a judge. Over the past month I have agonized over what the appropriate sentence should be. As a parent, the thought of losing a child to such a senseless act is unimaginable. Mr B had an entire future ahead of him. He was only 16-years-old. His parents, grandparents and friends were also robbed of their future with him.
[91] However, unlike most other teenagers your age, you were not well-equipped to deal with and control your angry impulses that day. You have made significant efforts to turn your life around: you have left the streets; you have dissociated yourself from poor peer influences; you have quit using drugs and alcohol; and you have become a productive member of society by getting a job.
[92] In R v Preston, 1990 CanLII 576 (BCCA), the court observed that sending an already rehabilitated offender back to jail would interfere with his rehabilitation needs and was perhaps not the best way to proceed.
[93] Both the psychiatrist and psychologist say that it would be counterproductive to send you to jail at this stage. They argue that incarcerating you would disrupt the positive shift and your ability to actively expand and promote your community supports and skills. In other words, all the traction and progress you have made so far would potentially be for not.
[94] Both of the doctors are professionals who have experience within the youth criminal justice system and I find their opinions compelling.
[95] I accept that if I do incarcerate you, because of the low number of female inmates at the Youth Detention Centre, the centre will be able to minimize your contact with anti-social personalities; however, as pointed out, this in turn will result in longer periods of isolation for you. These are not good options and a reason why Parliament makes it difficult for judges to impose jail sentences for young people.
[96] Even though denunciation and accountability loom large in this case, a sentence of imprisonment is not the only route to achieve them. An intensive rehabilitation custody and supervision sentence recognizes the seriousness of the offence while at the same time acknowledging and promoting the significant strides in rehabilitation that you have made with the help of your family and youth court services. Imposing a custodial sentence would likely have a serious negative effect on your progress and would not serve the genuine societal interest.
[97] We have already lost one young person and we, meaning all of us, need to do what we can to not lose another.
[98] I am satisfied that the preconditions for an intensive rehabilitation custody and supervision order have been met. I agree with Dr. Hosenbocus that such an order would provide the greatest hope that you will not relapse.
[99] Pursuant to section 42(r), I am imposing an Intensive Rehabilitative Custody and Supervision Order for 24 months. You will serve one day in custody which will be served by your presence here today and you will not be required to serve any further portion of the order in custody. However, if you breach any of the conditions of the order, you can be arrested and required to serve the remainder of your sentence in custody.
[100] The conditions of the Intensive Rehabilitative Custody and Supervision Order are as follows:
1. You must keep the peace and be of good behaviour;
2. You must appear before the youth justice court when required by the court to do so;
3. You must report to the provincial director and your youth court worker at the Kamloops Youth Probation Office by 3:00 p.m. tomorrow (July 13, 2021), then be under the supervision of the provincial director and your youth court worker and you must report thereafter as directed by the director or your youth court worker;
4. You must inform the provincial director immediately on being arrested or questioned by the police;
5. You must report to the police, or any named individual, as instructed by the provincial director;
6. You must report immediately to the clerk of the youth justice court or the provincial director of any change
(i) in your normal occupation, including employment, vocational or educational training and volunteer work,
(ii) your family or financial situation, and
(iii) anything that may reasonably be expected to affect your ability to comply with the conditions of the order;
7. You musty comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society.
8. You must live at an address approved in advance by your youth court worker and provide your worker with your phone number. You must not change your address or phone number without prior written permission from your worker.
9. You must obey a curfew by being inside your residence for the first six months of this order 24 hours per day and for the remainder of the order between 9:00 p.m. and 6:00 a.m. every day.
10. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or youth court worker attends or calls to check on you during the curfew.
11. You may be away from your residence during the curfew with the prior written permission of your youth court worker. You must carry the permission, which can be in electronic format, with you when you are outside your residence.
12. You must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription.
13. You must attend, participate in and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your youth court worker.
14. Having consented in court, you must do the following:
a. Report to Youth Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your youth court worker.
b. Attend all scheduled appointments with the professionals in charge of your mental-health care.
c. Take all medications and medical treatment prescribed to you by those professionals.
d. Provide your youth court worker with the names, addresses and phone numbers of those professionals.
e. Give those professionals a copy of this order.
f. If you decide not to follow these directions, you must immediately report that fact to your youth court worker.
You have consented in court to those professionals notifying your youth court worker if you fail to attend for an appointment or refuse to take the prescribed treatment or medication.
15. Having consented in court, you must sign any document that is necessary for your youth court worker, counsellors, or treatment providers to check your attendance and completion of any intake, assessment, counselling, or treatment program.
16. You must not possess, directly or indirectly, any weapon as defined by the Criminal Code, including:
a. firearms and ammunition;
b. cross-bows, prohibited or restricted weapons or devices, or explosive substances;
c. anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person;
d. any imitation of all of the above, including any compressed air guns or BB/pellet guns; or
e. any related authorizations, licenses and registration certificates and you must not apply for any of these.
17. You must not possess any knife outside your residence, except for the immediate preparation or eating of food. The exceptions are as follows:
a. while on your own property;
b. while at work, or going directly to and from work. If asked, you must provide your youth court worker with the details of your location and hours of employment;
c. with the prior written permission of your youth court worker. You must carry the permission, which may be in electronic format, when you possess knives outside your residence.
Ancillary Orders:
Pursuant to section 51 of the Youth Criminal Justice Act, you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for 10 years from today.
Manslaughter is a primary designated offence. Pursuant to section 487.051(1) of the Criminal Code, I authorize in Form 5.03 the taking of samples of bodily substances from you for registration in the DNA National Databank. Within 14 days of today, you must attend at the Kamloops Police Station and submit to the taking of the samples. This order is valid until executed.
______________________________
The Honourable Judge G. Koturbash
Provincial Court of British Columbia