R. v. Naziel, 2018 BCPC 146 (CanLII)
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2018 BCPC 146 |
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Date: |
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File No: |
24416-2-C |
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Registry: |
Smithers |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Smithers, B.C.
REGINA
v.
WALLACE JACK NAZIEL
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE J.T. DOULIS
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Shook, H. and Avery, S. |
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Counsel for the Defendant: |
McCarthy, J. |
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Smithers, B.C. |
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Date of Hearing: |
February 19, 20, April, 2018 Date of Final Submissions: April 24, 2018 |
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Date of Judgment: |
June 6, 2018 |
Introduction
[1] Wallace Jack Naziel is before the court for sentencing upon being convicted after a three day trial of the following offences:
Count 1: Section 252(1)(a) CC: failure to stop at the scene of an accident with person
Count 2: Section 267(b) CC: assault causing bodily harm
Count 3: Section 259(4) CC: operating a motor vehicle while disqualified
Count 4: Section 95 MVA: driving while prohibited
[2] The Crown seeks a global sentence of six months jail based on Mr. Naziel’s recent and related criminal record. The defence seeks an 18 month conditional sentence.
[3] As there is no joint disposition as to sentence and this is a sentencing hearing after a trial and not as a result of a plea resolution. Accordingly, the principles set out in the Supreme Court of Canada’s decision of R. v. Anthony-Cook, 2016 SCC 43, are not engaged.
Circumstances of the Offence
[4] All offences occurred on Wednesday, September 14, 2016, in and around Moricetown, B.C. On that day, Johnny Morris was hanging out with Wallace Naziel, Valerie Naziel and Matias Morris. For about one hour in the late afternoon Mr. Naziel was driving three passengers in his blue mini-van in the Moricetown area on the Telkwa Highroad and Beaver Road. Beaver Road is Moricetown’s main artery providing access to the Moricetown Band office, the Health and Wellness Centre, the elementary school and I-Count school.
[5] All the occupants of Mr. Naziel’s vehicle were drinking alcohol. Mr. Naziel and Mr. Morris were intoxicated. As Mr. Naziel’s vehicle approached the Health and Wellness Centre, Mr. Morris decided to get out and go home. Mr. Naziel stopped the vehicle and Mr. Morris got out. He was angry. He exchanged heated words with Wallace and Valerie Naziel. He walked in front of the vehicle and kicked its bumper. Mr. Naziel intentionally accelerated forward and hit Mr. Morris with the vehicle. Mr. Morris flew five feet towards the ditch suffering pain in his tail bone as the result of being hit. Mr. Naziel drove off without stopping.
[6] At the time of this incident, Mr. Naziel was disqualified from driving pursuant to s. 259(1) of the Criminal Code and prohibited from driving under s. 251(4) of the Motor Vehicle Act.
[7] The incident was witnessed by a young high school student, J.B., and perhaps others who happened to be in the vicinity of the Moricetown Band Office.
[8] At 7:05 p.m. a member of the Moricetown Band Counsel called the RCMP to report that Mr. Morris had been hit by a vehicle being driven by Wallace Naziel and that Mr. Morris was limping, but not unconscious.
[9] At 8:18 p.m. on September 14, 2016, Corporal Delwisch arrested Wallace Naziel at his parent’s residence in Two Mile. She described Mr. Naziel as being highly intoxicated: he emanated an extremely strong odour of alcohol; his speech was very slurred; he had difficulty pronouncing his words and Corporal Delwisch had difficulty understanding him.
[10] Mr. Morris suffered pain to his tailbone which persists to this day.
[11] Mr. Naziel denies any memory of the incident.
[12] My findings of fact are set out in R. v. Naziel, 2017 BCPC 427 (CanLII).
Issues:
[13] The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, Mr. Naziel.
Crown’s Sentencing Position
[14] The Crown seeks a custodial sentence of six months, allocated as follows:
Count 1: Section 252(1)(a) CC: failure to stop at the scene of an accident with person: three months jail;
Count 2: Section 267(b) CC: assault causing harm: three months jail, consecutive to the sentence imposed on Count 1;
Count 3: Section 259(4) CC: operating a motor vehicle while disqualified: 30 days jail to be served concurrently with all other jail sentences imposed in respect to this matter;
Count 4: Section 95 MVA: driving while prohibited 30 days jail to be served concurrently with all other jail sentences imposed in respect to this matter.
[15] The Crown does not seek a term of probation.
[16] The Crown seeks the following ancillary orders:
a. a two year driving prohibition with respect to s. 252(1)(a) offence under s. 259(4) of the Criminal Code;
b. a two year driving prohibition under s. 98 of the Motor Vehicle Act;
c. as the s. 267 (b) offence of assault causing bodily harm is a primary designated offence, the Crown seeks a DNA order pursuant to s. 487.04, 487.051 CC; and
d. The Crown does not seek a discretionary weapons prohibition pursuant to s. 110 of the Criminal Code, but submits that because the assault causing bodily harm (s. 267(b)) is a violent offence, the court must consider whether a weapons prohibition is appropriate.
[17] In support of its sentencing position, the Crown tendered into evidence at the sentencing hearing the following exhibits:
Exhibit 1: Presentence Report of Probation Officer Patricia Braiden filed January 18, 2018
Exhibit 2: Justin Conviction List setting out Mr. Naziel’s Criminal Record
Exhibit 3: B.C. Superintendent of Motor Vehicle’s Driver’s abstract for Mr. Naziel certified true by Mark Bucher on January 6, 2017.
[18] All exhibits were entered into evidence at the sentencing hearing with the consent of the defence.
Criminal Record
[19] Mr. Naziel has a Criminal Record dating back to 1986 (Exhibit 2). He was convicted of the following offences:
a. driving while over .08 mgs of alcohol in 100mg of blood on December 2, 1986;
b. failing to appear and assault with a weapon on July 30, 1991;
c. driving while prohibited contrary to s. 95 of the MVA on February 12, 2013 for an offence which occurred on June 22, 2012;
d. two counts of driving while prohibited contrary to s. 95(1)(a) of the MVA on November 18, 2014 for offences which occurred on October 12, 2012 and September 5, 2014; and
e. impaired driving (s. 253(1)(a) Criminal Code) and driving while prohibited contrary to s. 95 of the MVA on September 2, 2016, for offences which occurred on November 30, 2015.
[20] The only jail sentence Mr. Naziel received for these offences was on September 2, 2016, when he was sentenced to 14 days in jail, to be served intermittently for driving while prohibited.
Aggravating and Mitigating Factors
[21] The Crown asserts the following factors in this matter are mitigating:
a. Mr. Naziel is a member of the Wet’suwet’en First Nations and principles of sentencing set out in s. 718.2(e) of the Criminal Code as interpreted by the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC),and R. v. Ipeelee, 2012 SCC 13 (CanLII), are therefore engaged;
b. Mr. Naziel asserts he has quit drinking alcohol and has been “generally” sober since September 16, 2016. The Crown does not dispute the veracity of this assertion.
[22] The Crown says the following factors are aggravating:
a. Mr. Naziel has a criminal record which includes recent prior convictions for driving offences;
b. Mr. Naziel has a lengthy driving record which includes numerous violations for driving without a licence, driving without insurance and driving while prohibited;
c. Mr. Naziel intentionally used his vehicle as a weapon to assault Mr. Morris;
d. Mr. Morris suffered injuries as a result of the assault; and
e. Mr. Naziel was intoxicated at the time of the incident giving rise to these offences.
[23] Crown must prove aggravating factors beyond a reasonable doubt. I am satisfied the Crown has met this burden. The defence has not argued otherwise.
[24] The Crown asserts as neutral, the fact that Mr. Naziel was convicted after a trial on the merits. Although compelling the Crown to prove its case on the merits is never aggravating, Mr. Naziel does not have the mitigating benefit of an early guilty plea.
[25] Also neutral, but noteworthy, is that Mr. Naziel has not accrued any further Motor Vehicle Act or Criminal Code offences since September 14, 2016.
Crown’s Authorities
[26] The Crown relies on R. v. Gill, 2010 BCCA 388, R. v. Howey, 2007 BCCA 323, R. v. Landry, 2017 SKQB 169 and R. v. Henderson, 2015 MBPC 6. Below is a synopsis of the facts and principles I have extracted from my review of these cases.
R. v. Gill, 2010 BCCA 388 (“Gill”)
[27] Gill is a defence appeal against conviction and sentence. Mr. Gill was sentenced to 12 months jail and a two year driving prohibition for dangerous driving and a consecutive 18 months jail for leaving the scene of the accident. For a period of three to 15 seconds Mr. Gill took his eyes off the road and crossed into the oncoming traffic, hitting another vehicle virtually head-on. The occupant of the other vehicle sustained serious permanent injuries. Mr. Gill left the scene of the accident without offering any assistance to the obviously injured victim.
[28] Mr. Gill was 51 years old, a professional driver with a good driving history without any criminal record, supported his family and apologized to the victim in court. Still, the Court of Appeal rejected his argument the sentences for dangerous driving and leaving the scene of an accident ought to have been concurrent. Hinkson, J.A., for the unanimous appellate court stated:
[16] Counsel for Mr. Gill did not press the submission that the sentences ought to have been concurrent because they arose from the same incident before us, and I find no merit in that submission in any event. Mr. Gill’s dangerous driving was completed when his truck collided with the other vehicle. It was only after that collision that he owed a duty to remain at the scene, which he failed to do. As the sentencing judge found, the two charges arose from events that were separate and distinct. The reasoning of the sentencing judge on this issue is consistent with the decision of this Court in R. v. McCrea, 2008 BCCA 227 (CanLII). I would give no effect to this ground of appeal.
[29] In Gill, the Court of Appeal cited Chief Justice Finch’s comments in R. v. Bhalru, 2003 BCCA 645, at para. 28 [citations omitted]:
[28] The level of moral culpability is determined in part by considering the intentional risks taken by the offenders, the degree of harm that they have caused, and the extent to which their conduct deviates from the acceptable standard of behaviour . . .
[30] The Court of Appeal dismissed Mr. Gill’s argument that although he left the scene of the accident, it did not result in the injured party being left without assistance. The Court stated: “while this is true, his conduct following the collision was selfish and irresponsible, and was conduct that the sentencing judge was entitled to consider.”
[31] In determining the fitness of sentence for leaving the scene of an accident the trial judge considered the range of custodial sentences between three and 12 months and for dangerous driving causing bodily harm the range of custodial sentence between one year and two years less one day. The appellate court upheld the 30 months cumulative sentence and two year driving prohibition. It also rejected Mr. Gill’s submission the sentencing judge ought to have imposed a conditional sentence.
R. v. Howey, 2007 BCCA 323 (“Howey”)
[32] Howey is a Crown appeal from a 22 month conditional sentence imposed on Mr. Howey after he pled guilty to one count of dangerous driving and one count of leaving the scene of an accident. Madam Justice Ryan for the unanimous appellate court stated:
[19] The sentencing judge was faced with a young man who had a discouraging record of driving offences, the most serious of which were associated with the consumption of alcohol. The pre-sentence report presented a dismal picture of his understanding of what he had done, a lack of interest in the harm he had caused his victims and a history of unwillingness to confront his problems.
[33] The appellate court found the sentencing judge had erred in failing to consider the criteria set out in s. 742.1. She failed to consider both whether serving the sentence in the community would endanger the safety of the community and whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. In substituting an 18 month sentence of incarceration for the conditional sentence and the two year driving prohibition with one of five years, Ryan J.A. states:
[26] Had she considered the first point, the sentencing judge could only have reached the conclusion that Mr. Howey presented a danger to the community. Nothing in the record, either put forward by his counsel or Mr. Howey himself did anything to counter the respondent’s persistent pattern of bad driving, failure to comply with court-ordered counselling and general irresponsibility. Nothing in the record demonstrated that the respondent had reached the point where he was willing to at least try to change his behaviour. In these circumstances there was simply no evidence that he would not endanger the community if he were permitted to serve his sentence conditionally, and much evidence that he would.
[27] As to the second point, the sentencing judge erred by limiting herself to a consideration of the principle of rehabilitation. While this is a factor that she ought to have seriously considered, she did so without examining the other principles of sentence — deterrence and denunciation — principles that, given the facts of these offences and the history of the respondent, could not be ignored.
[28] In my view, given the errors in principle, the next question is whether the sentence is unfit. In my view, it is. The respondent was highly culpable. He drank while driving an uninsured vehicle, he took on more passengers than permitted, he drove at least twice the speed limit losing control of his vehicle, smashing into an oncoming car and then into parked vehicles. He ran off leaving his injured friends in the car. He did this in spite of several driving prohibitions and opportunities to change his behaviour, having accumulated a rather bad driving record. In my view, the need for deterrence and denunciation required a sentence of incarceration.
R. v. Landry, 2017 SKQB 169 (“Landry”)
[34] Landry is a sentencing decision of Justice Barrington-Foote of the Queen’s Bench for Saskatchewan. Mr. Landry pled guilty to failing to remain at the scene of an accident and to possession of stolen property. Mr. Landry was a 30 year old Metis offender with a lengthy record. He had a feral childhood during which he faced poverty, institutionalization and a lack of parenting. The sentencing judge stated:
[11] I must keep in mind, however, that the offender has not been convicted of an offence relating to the manner in which he drove, or the damage caused by the accident. Mr. Landry must be sentenced for these offences, in accordance with the purpose and principles of sentencing in the Criminal Code. His sentence must be proportionate to the gravity of the offence, and the degree of his responsibility. It must reflect the principle of parity.
[35] The sentencing judge found that general and specific deterrence were important sentencing objectives in the circumstances and imposed a 15 month custodial sentence, restitution and a two year driving prohibition.
R. v. Henderson, 2015 MBPC 6 (“Henderson”).
[36] Mr. Henderson pled guilty on September 2, 2014 to the following offences in relation to these matters:
a. impaired driving contrary to s. 253(1)(a) CC;
b. assaulting a peace officer contrary to s. 270 CC;
c. failing to stop at the scene of an accident pursuant to s. 252 CC;
d. dangerous operation of a motor vehicle pursuant to s. 249 CC; and
e. theft of a motor vehicle pursuant to s. 333.1 CC.
[37] PCJ Corrin imposed a global sentence of 35 months allocated as follows:
a. driving impaired: 1 month
b. assaulting a Peace Officer: 5 months, consecutive
c. leaving the scene of accident: 3 months, consecutive
d. driving dangerous: 17 months, consecutive
e. theft of a motor vehicle: 9 months, consecutive
[38] Applying the principle of totality in light of the gravity of the offences, Mr. Henderson’s degree of moral blameworthiness, and the harm done to the victim, Judge Corrin reduced his total sentence by four months, making it 31 months rather than 35 months.
Pre-Sentence Report (s. 721 CC)
[39] Patricia Braiden, a Probation Officer with Smithers Community Corrections prepared a pre-sentence report with a Gladue component which was marked Exhibit 1 in the sentencing hearing on February 19, 2018. In her report, PO Braiden describes Mr. Naziel as 51 years old and a member of the Wet’suwet’en First Nations. He was raised in homes plagued by family violence and alcoholism. While growing up, he lived with his aunt and uncle in whose home he suffered much physical and mental abuse.
[40] In his interview with PO Braiden, Mr. Naziel says he lives alone in Moricetown. He describes himself as a loner with few friends with whom he occasionally spends time, but for the most part, he spends most of his time alone.
[41] Mr. Naziel has not worked since 2000 and receives a disability pension. He had a kidney transplant ten years ago and is extremely limited in the amount of weight he can lift. Mr. Naziel continues to take numerous anti-rejection medications as a result of his kidney transplant as well as for high blood pressure.
[42] Mr. Naziel has been an alcoholic for much of his adult life although he did have lengthy periods of sobriety. He has not attended counselling or a residential treatment program. Mr. Naziel claims he has been more or less sober since September 16, 2016, largely because alcohol makes him feel sick. Mr. Naziel acknowledges that he needs to address childhood trauma and alcohol misuse. He says he would attend any court ordered counselling; however on a scale of 1 to 10, his motivation level to attend treatment is 6.
Victim impact statements (ss. 722, 722.1 CC)
[43] At trial Mr. Morris said neither he nor Mr. Naziel wanted this incident to happen. He attributed it to their respective level of intoxication at the time. Mr. Morris did not provide a formal Victim Impact Statement, but he did speak to Probation Officer Braiden about the impact of the assault. In her Pre-Sentence Report, Ms. Braiden states Mr. Morris was negatively impacted, emotionally and physically, by the assault upon him. He continues to suffer lower back pain. Although he does not seek any order prohibiting Mr. Naziel from communicating or having contact with him, Mr. Morris would like Mr. Naziel to apologize to him.
Defence’s position on sentence
[44] The defence submits that given Mr. Naziel’s personal circumstances a fit sentence is an 18 month conditional sentence. The defence says Mr. Naziel’s personal circumstances as set out in the Pre-sentence Report show:
a. Mr. Naziel has suffered privation, racism and cultural abuse as a consequence of his aboriginal background;
b. Mr. Naziel has laboured under a serious drinking problem for years, although he is capable of not drinking;
c. all of Mr. Naziel’s offences past and present are alcohol related, if not induced; and
d. Mr. Naziel suffers from renal failure for which he takes ongoing medication. The defence does not assert provincial corrections is incapable of properly treating Mr. Naziel while he is in custody; however, submits, such treatment complicates his incarceration.
Defence’s Legal Argument
[45] In support of its sentencing position, the defence relies on the following authorities: Gladue, Ipeelee, R. v. Proulx, 2000 SCC 5; R. v. Allen, 2012 BCCA 377; R. v. Anderson, 1992 CanLII 6002 (BC CA); R. v. Smith (May 15, 1989), Vancouver CA010423 (B.C.C.A.); R. v. Ralph, 2014 BCSC 467; R. v. Thompson, 1989 ABCA 212; R. v. Horvath, 1997 CarswellSask 296 (SKCA).
[46] The defence addressed the following principles of sentencing set out in s. 718 of the Criminal Code:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. To denounce unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or to the community; and
f. To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.
Denunciation: 718 (a)
[47] The defence acknowledges that parliament has included denunciation under s. 718 as a principle I am required to consider when crafting a fit sentence. Still, Mr. McCarthy argues that denunciation is simply a polite term for retribution, which in turn is a polite term for the deeply politically incorrect notion of “revenge”. As a principle of sentencing “denunciation” engages a different analytical platform than the other sentencing objectives which further the overarching goal of maintaining a “just, peaceful and safe society.” Mr. McCarthy submits that denunciation is of no assistance except to restore the moral balance to allow or force the offender to atone for his sins.
[48] In Allen, Madam Justice Ryan, points out that while retribution is an accepted sentencing principle, vengeance is not. She references R. v. M. (C.A.) 1996 CanLII 230 (SCC), in which Chief Justice Lamer distinguishes these two motivations [citations omitted]:
[77] It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law.
. . .
[79] Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions.
[80] However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. . . . But it should be clear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. . . Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. . . . "The retributivist insists that the punishment must not be disproportionate to the offender's deserts."
. . .
[82] As a closing note to this discussion, it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justification for criminal punishment. . . . the goals of the penal sanction are both "broad and varied". Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles . . . relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [paras. 77-82]
Deterrence: 718(b)
[49] Deterrence, like denunciation is punitive. The defence points out that deterrence is a compendium of specific and general deterrence. Citing Horvath, Mr. McCarthy argues that jurists are skeptical about the efficacy of general deterrence as a sentencing objective. Bayda, C.J.S. states at para. 46 (in part) in Horvath [citations omitted]:
[46] . . . Numerous crime-control scholars, any number of academic writers and commissioners of inquiries into sentencing matters and even some judges, have developed a rather robust skepticism about the validity of general deterrence as a sentencing objective. . . . Parliament nevertheless in its recent legislation elected to include general deterrence as one of the objectives of sentencing. That increasing overt expression of skepticism on the part of those who have closely studied the subject aside, general deterrence, in my respectful view, has very little or no role to play in a decision about where a pathological gambler should serve his or her sentence of imprisonment.
[50] In Horvath the court recognized that gambling addictions are a mental disorder where the person does not have the same power of control over his or her acts as someone who does not suffer from such an affliction. A gambling addict does not possess the same moral culpability as someone whose mind is not so affected. The defence argues that although the Court in Hovarth addressed pathological gamblers, its reasoning applies to alcoholic offenders who suffered abuse and privation as a consequence of their aboriginal background. Accordingly, Mr. Naziel’s moral blameworthiness is relatively low and the length of any denunciatory sentence imposed today must reflect his diminished moral culpability.
[51] I accept the premise that if children are left unprotected in an environment where they are subject to psychological and physical abuse at the hands of their caregivers, they may mature into adults with a diminished respect for society’s values. Nevertheless, where a troubled childhood may significantly diminish the moral culpability of a young person or first offender, its impact lessens with time.
Separation of Offender from Society: s. 718(c)
[52] The defence submits there is no pressing need to separate Mr. Naziel from society. The public is best protected, not by a brief period of incarceration as advocated by the Crown, but by a substantially longer term of imprisonment in the community.
Rehabilitation: 718(d)
[53] The Defence submits the sentencing principle under ss. 718(c) and (d) together with 718.2(d) and 718.2(e) militate toward a long term conditional sentence. Sections 718.2(d) and 718.2(e) state:
A court that imposes a sentence shall also take into consideration the following principles:
d. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
e. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[54] The defence argues that any risk of Mr. Naziel reoffending is best managed by addressing his manifest alcoholism through counselling in the community.
Reparations: 718(e)
[55] As to providing reparations for harm done to the victim or to the community, the defence points out that Mr. Morris does not seek an order prohibiting Mr. Naziel from having contact with him. All Mr. Morris wants as a form of reparation is an apology from Mr. Naziel.
Promote a sense of responsibility: 718(f)
[56] As to the sentencing goal of “promot[ing] a sense of responsibility”, the defence submits a relatively lengthy conditional sentence would be more effective than Mr. Naziel spending a few months in custody, “being told what to eat, when to eat, when to go to bed, when to awaken, and what to do . . .[while] awake.”
Aboriginal offenders: s.718.2(e)
[57] Section 718.2(e) is a remedial provision Parliament enacted to ameliorate the overrepresentation of aboriginal people incarcerated in the Canadian prisons. To this end, the sentencing judge is to consider all available sanctions other than imprisonment which are reasonable in the circumstances. What is reasonable depends on the harm done to the victims or the community.
[58] In sentencing Mr. Naziel, I must firstly consider the unique systemic or background factors which may have played a part in bringing him before the court: Ipeelee, para. 59. Mr. Naziel is not required to prove a causal connection between these factors and the commission of the offences of which he was convicted. The Court must take judicial notice of the historical background of Canada’s aboriginal people, which includes colonialism, displacement and residential schools, and how it continues to translate into all manner of societal impoverishment in education, income and employment, and in higher rates of substance abuse, suicide, and incarceration. Additionally, the Court must consider any information individual to Mr. Naziel: Ipeelee, paras. 59 and 60.
[59] Secondly, I must consider the types of sentencing procedures and sanctions which may be appropriate in Mr. Naziel’s circumstances in light of his aboriginal heritage: Ipeelee, para. 59. Social and economic deprivation may diminish his moral culpability for his offences and justify a more lenient sentence than otherwise would be imposed: Ipeelee, at para. 73. This is true even for serious and violent offences.
[60] In considering the background information contained in the pre-sentence report together with the submissions of defence counsel, I am satisfied those factors, both systemic within society and specific to Mr. Naziel, have likely played a part in bringing him before the court.
Law with respect to conditional sentences
[61] A conditional sentence is not available for all offences. It is a creature of the Criminal Code. For example, there is no provision in the Offence Act, 1996 RSBC 338 for a conditional sentence and therefore this option is not available to Mr. Naziel for the s. 95 MVA offence charged under Count 4. In R. v. Alpha Manufacturing Inc., 2005 BCSC 1644 (CanLII), Madam Justice Gray, referencing R. v. Corbett, 2005 BCSC 1437 (CanLII), held the Motor Vehicle Act and the Offence Act made full provision for the manner in which a sentence may be served. The court rejected the argument that the absence of conditional sentencing terms was a failure to make express provision or full provision such that s. 133 of the Offence Act operated to include the conditional sentencing terms of the Criminal Code. In sum, a conditional sentence is not a sentencing option available for Mr. Naziel with respect to Count 4.
[62] Counts 1, 2 and 3 are Criminal Code offences and a conditional sentence is potentially available if the statutory preconditions are met. Section 742.1 lists the following five criteria a court must consider before imposing a conditional sentence:
a. the offender must be convicted of an offence that is not specifically excluded by the legislation;
b. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
c. the court must impose a term of imprisonment of less than two years;
d. the safety of the community would not be endangered by the offender serving the sentence in the community; and
e. a conditional sentence would not be inconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[63] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the Court must assess whether a conditional sentence is appropriate in light of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[64] I have no hesitation in finding the first three criteria for the prerequisites of a conditional sentence under s. 742.1 are satisfied respect to Counts 1, 2 and 3. Specifically:
a. None of the Criminal Code offences of which Mr. Naziel was convicted is specifically excluded by the legislation;
b. None of the Criminal Code offences of which Mr. Naziel was convicted carries a minimum term of imprisonment;
c. Because the Crown has proceeded summarily, the Court cannot impose a term of imprisonment of two or more years for any offence of which Mr. Naziel was convicted. An offence under s. 252(1)(a) (leaving the scene of an accident) attracts a maximum term of imprisonment of six months; an offence under s. 267(b) (assault causing bodily harm) attracts a maximum term of imprisonment of 18 months; an offence under s 259(4) CC (driving while disqualified) attracts a maximum term of imprisonment of six months; for an offence under s. 95 of the MVA, the maximum term of imprisonment is six months.
[65] The fourth conditional sentence prerequisite, namely, the safety of the community, requires greater analysis. The Crown and defence agree the danger posed by Mr. Naziel serving his sentence in the community is low if he remains sober. They also agree that that since September 16, 2016 Mr. Naziel has stopped drinking and stopped driving.
[66] The defence relies on the B.C. Court of Appeal decision in Anderson, in which Justice Taylor considered whether alcohol was an aggravating or mitigating factor in sentencing an offender charged with criminal negligence in the operation of a vehicle causing death or bodily harm. Taylor, J.A. states at paras. 44-45:
[44] The involvement of alcohol is always an aggravating factor in these cases. But there will necessarily be some cases in which the facts are such that a sober driver will be held to bear a higher degree of culpability than will be assigned to an impaired driver on the different facts of another case. An alcoholic offender who overcomes his or her addiction, for instance, and demonstrates a likelihood of henceforth leading a disciplined life, making a useful contribution to society and being unlikely to re-offend, is entitled to credit from a sentencing court on that account. A person who kills by pursuing a deliberately reckless course of conduct while sober, and demonstrates neither appreciation of the gravity of that conduct nor any basis on which the court can conclude that he or she will behave better in future, must necessarily expect to be sentenced differently.
[45] The factor of "remorse" is often important. In so far as it might be suggested that the court should regard those who come before it in a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitude they are able to summon, there would be little in this factor which could assist the sentencing judge. But to the extent that an accused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending, the existence of remorse in this sense obviously has much importance.
[67] Mr. Naziel claims to have stopped drinking and stopped driving, which the Crown accepts as true. The defence argues this post-offence conduct militates toward a more lenient sentence. Notwithstanding his professed abstinence, I do not consider Mr. Naziel’s prospects of rehabilitation through insight and self-discipline promising. Although not aggravating, Mr. Naziel has not demonstrated the type of remorse described in Anderson. He is 51 years old and has numerous previous convictions for driving offences which the defence say were alcohol related. He committed the offences before the court only 12 days after having been convicted of impaired driving and driving while prohibited. Mr. Naziel has not taken responsibility for his actions. His commitment to counselling is lukewarm at best. Having said that, I am nevertheless satisfied the safety of the community would not be endangered by Mr. Naziel serving his sentence in the community, not because he appreciates the gravity of his conduct, but because drinking now makes him physically ill. I do not believe Mr. Naziel presents a significant risk of reoffending while sober, which his failing health now requires. Accordingly, I find the fourth prerequisite to a conditional sentence under s. 742.1 has been met.
[68] Having found Mr. Naziel is not precluded from a conditional sentence by any of the first four criteria under s. 718.1, I must now consider whether it is not inconsistent with the fundamental purposes and principles of sentencing under ss. 718 and 718.2. In assessing this issue, I take note of the following general principles extracted from Proulx:
a. unlike probation, which is primarily rehabilitative, a conditional sentences is both punitive and rehabilitative;
b. a conditional sentence need not be of the same length as the sentence of incarceration that would otherwise be imposed;
c. even if an offender’s risk of re-offending is low, the court must also assess the gravity of the damage that could ensue if he does reoffend;
d. a conditional sentence may be imposed even where there are aggravating circumstances;
e. a conditional sentence can provide significant denunciation and deterrence through the imposition of punitive conditions;
f. a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, the promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community; and
g. incarceration will be better than a conditional sentence at achieving the objectives of denunciation and deterrence.
[69] In this case, restorative objectives are less pressing than denunciation and deterrence, which makes incarceration the preferable sanction. Nonetheless, a conditional sentence may still provide sufficient denunciation and deterrence, depending on conditions imposed, the duration of the sentence and the circumstances of the offender and the community in which the conditional sentence would be served.
[70] I have considered relevant the following circumstances individual to Mr. Naziel and the community in which he lives:
a. Although a small reserve community, Moricetown, also known as Witset, is regularly serviced by the Smithers RCMP Detachment which is a 34 kilometers away;
b. Members of the community reported to the police the incident giving rise to the matters before the Court. I am thus confident the community will not sanction or turn a blind eye to Mr. Naziel’s non-compliance with any conditions this court may impose on his liberty;
c. As described in the Pre-Sentence Report, the Wet'suwet'en First Nation has established a number of services to address anti-social behaviour in its community. One of these services is the Wet’suwet’en Unlocking Aboriginal Justice Program developed in the early 1990s to respond to First Nations’ issues within the criminal justice system;
d. Mr. Naziel is an aboriginal offender whose background includes many of the social disadvantages identified by the Supreme Court in Gladue. I am satisfied these factors diminish his moral culpability for the offences of which he is convicted and justify a different sentence than that which the Court would otherwise impose;
e. Mr. Naziel is in frail health. Although he is not facing imminent death from a terminal illness, he is 51 years old, and he suffers from a serious and progressive disease. Since his kidney transplant in 2008, he has been restricted from lifting weights over 10 pounds. In this regard I have considered Justice Romilly’s decision in Ralph, at para. 106, in which he states: “infirmity is always a factor to be considered and may warrant a reduction in sentence . . . or, in appropriate circumstances, a different kind of sentence”.
f. The defence submits I ought to consider the impact of Mr. Naziel’s incarceration on his parents, who are elderly, frail and dependent upon him for heat, food preparation and for general support. The defence relies on Smith in which the B.C. Court of Appeal said that collateral damage inflicted upon a family member of an accused by a sentence imposed upon that accused may be a factor taken into consideration by a court in sentencing. I note, however, Mr. Naziel makes no mention of his contribution to his parent’s household in his interview with PO Braiden. Mr. Naziel states his father died in 1990. Mr. Naziel previously lived in Quesnel for nine years. He describes himself as “a loner” who lives in Moricetown and spends most of his time alone.
g. There is a dearth of evidence as to Mr. Naziel’s contribution to the support his parents. I understand from Corporal Delwisch’s evidence that Mr. Naziel’s parents reside in Two Mile, which is approximately 40 kilometers or a 35 minute drive from Mr. Naziel’s residence in Moricetown. I find it surprising that given Mr. Naziel’s lengthy absence from the area, his medical frailty, his alcoholism, his distance from Two Mile, his lack of a drivers’ licence and his isolationism that it is he and not any of his five surviving siblings who assist his parents with heat, general support and food preparation. I am skeptical as to how much meaningful assistance Mr. Naziel is able to provide his parents given his circumstances. Consequently, I am not prepared to give this factor any weight.
Conclusion on CSO
[71] I am of the view the six month sentence proposed by the Crown is insufficient. The appropriate range of sentence is closer to those imposed on persons convicted of dangerous driving causing bodily harm, which is quite broad: R. v. Brodie, 2017 BCSC 2269, citing R. v. Brewer, 2014 BCSC 107.
[72] I have taken guidance from R. v Nelson, 2017 BCSC 1050 (CanLII) aff’d R. v. Nelson, 2018 BCCA 161 (CanLII). Justice Saunders, the trial judge, accepted the proposition that the aggressive or reckless use of a vehicle in a manner that puts members of the public at risk is a serious matter that invites close scrutiny by the courts. Mr. Nelson, following an argument deliberately hit the male victim with his vehicle. The victim suffered some lacerations and scratches as a result of the assault. He suffered also headaches two years after the incident. Mr. Nelson was convicted after trial of assault causing bodily harm and assault with a weapon. He was also convicted of sexual assaulting a different female victim.
[73] Mr. Nelson was 26 years old at the time of the offences and 29 at the time of his sentencing in April 2017. He had no criminal record, however he did have a history of behavioral problems and addiction issues. He had not taken any steps toward rehabilitation. Justice Saunders imposed a sentence of 21 months on each assault charge. This sentence was upheld on appeal wherein Madam Justice Fisher for the unanimous appellate court noted at para. 30 that it is reasonable for a judge to place less importance on the lack of a record where other mitigating factors are absent, such as the ability for the offender to appreciate his offences and to rehabilitate.
[74] As noted in Nelson, the intentional use of a vehicle as a weapon against an unprotected person carries a great degree of moral culpability. I find the governing sentencing principles in this case are denunciation, deterrence and to a lesser degree, rehabilitation.
[75] The defence submits an 18 months community sentence with house arrest and other strict conditions is appropriate. I agree a lengthy conditional sentence followed by a period of probation would ensure Mr. Naziel’s behaviour is monitored by Community Corrections far longer than if he were to serve a six month custodial sentence.
[76] The sentence on Counts 1, 2 and 3, are as follows:
Count 1: Section 252(1)(a) CC: failure to stop at the scene of an accident with person: six month conditional sentence to be served concurrently with any other conditional sentence imposed today;
Count 2: Section 267(b) CC: assault causing harm: 18 month conditional sentence; to be served concurrently with any other conditional sentence imposed today;
Count 3: Section 259(4) CC: operating a motor vehicle while disqualified: six month conditional sentence; to be served concurrently with any other conditional sentence imposed today;
Disposition on Count 4:
[77] Under Count 3, Mr. Naziel is charged under s. 259(4) CC with driving while disqualified and under Count 4 he is charged with driving while prohibited under s. 95(1) MVA. I found him guilty of both counts based on evidence that he was driving a motor vehicle on September 14, 2016. On April 15, 2018, referencing R. v. Muys, 2006 BCSC 1483 (CanLII), I raised with counsel the issue as to whether it offended the rule against multiple convictions as interpreted in R. v. Kienapple, 1974 CanLII 14 (SCC), for a conviction to be entered on the s. 95 MVA charges in addition to the one under s. 259(4) of the Criminal Code.
[78] The defence submits and the Crown agrees that to convict Mr. Naziel on both Counts 3 and 4 would offend the rule against multiple convictions as both offences had arisen out of the same act of driving.
[79] In Muys, Justice Meiklem held that convictions under s. 259(4) CC and s. 95 of the MVA do offend the principle against multiple convictions arising from the same criminal act. As Muys is binding on this Court, I am entering a judicial stay of proceedings of Court 4 charging Mr. Naziel with driving while prohibited under s. 95 of the MVA.
Conditional Sentence Order
[80] The terms of all conditional sentences imposed today are as follows:
a. You must keep the peace and be of good behaviour.
b. You must appear before the Court when required to do so by the court.
c. You must notify the Court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.
d. You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. You must carry the written permission when you are outside the province.
e. You must report in person to the conditional sentence supervisor at Smithers Community Corrections by 3:00 PM on June 7, 2018, after that, you must report as directed by the conditional sentence supervisor.
f. When first reporting to the conditional sentence supervisor, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your conditional sentence supervisor.
g. Commencing at 8 p.m. on June 7, 2018, and continuing for the first 12 months of this order, you must remain inside your residence, or on the lot on which it is located, under house arrest 24 hours per day, 7 days per week.
h. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order.
i. You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the house arrest hours. You may also be away from your residence during the house arrest hours:
i. While in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide a conditional sentence supervisor with details of your employment, including location and hours of work.
ii. In the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.
iii. During the hours of 12:00 to 3:00 p.m. each Tuesday and Thursday to attend to your personal business.
iv. To comply with any term of this conditional sentence order.
v. In the presence of a person approved in writing by your conditional sentence supervisor. You must carry the written permission with you when you are away from your residence during the house arrest hours.
j. You must carry a copy of this order and any written permission from your conditional sentence supervisor with you at all times when you are outside your residence. If a peace officer stops you for any reason, you must immediately provide the peace officer with a copy of this order and written permission without being requested to do so (upon the request of a peace officer).
k. You must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription.
l. You must not enter any liquor store, beer and wine store, bar, pub, lounge, night club, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor license.
m. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the conditional sentence supervisor.
n. You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code, or any related authorizations, licenses or registration certificates.
o. You must not possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment.
p. You must not occupy the driver’s seat of any vehicle
q. You must apologize to Johnny Morris in the manner directed by your conditional sentence supervisor and to the satisfaction of your conditional sentence supervisor.
r. Subject to the consent of Johnny Morris you must participate in a restorative justice program at the direction of your conditional sentence supervisor.
[81] Following the expiration of your conditional sentence on Count 2, assault of Johnny Morris causing bodily harm, you will be on a period of Probation for 12 months. The term of your probation order will be as follows:
a. You must keep the peace and be of good behaviour.
b. You must appear before the Court when required to do so by the Court.
c. You must notify the Court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
d. You must report in person to a probation officer at Smithers Community Correction within 72 hours after the expiration of your conditional sentence order, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by the probation officer.
e. When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer.
f. You must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription.
g. You must not enter any liquor store, beer and wine store, bar, pub, lounge, night club, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor license.
h. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation Officer.
i. You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in section 2 of the Criminal Code, or any related authorizations, licenses or registration certificates.
j. You must not possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment.
k. You must not occupy the driver’s seat of any vehicle
Ancillary Orders
[82] Pursuant to section 259 of the Criminal Code, you are prohibited from operating any motor vehicle on any street, road, highway or other public place in Canada for two years.
[83] Count 2 on Information 24416-2-C is a primary designated offence. Pursuant to section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. You must attend at the RCMP Police Station in Smithers, B.C. during its regular business hours on or before June 30, 2018, and submit to the taking of the samples. This order is valid until executed.
[84] Pursuant to s. 110 of the Criminal Code, you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for 5 years.
[85] There is a Victim Fine Surcharge associated with this conviction. It will be payable within six months of this order.
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J.T. Doulis
Provincial Court Judge