Citation:	R. v. Young
	2021 BCPC 6
Date:		20210115
File No:		6763-1
Registry:		Queen Charlotte

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

FRANK JEAN YOUNG

 

 

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE D. PATTERSON

 

 

 

 

Counsel for the Crown appearing by videoconference:		A. Switzer
Counsel for the Defendant appearing by videoconference:		W. Sundhu
Place of Hearing:		Prince Rupert, B.C.
Date of Hearing:	November 17, 2020 and January 12, 2021
Date of Judgment:		January 15, 2021

Table of Contents

Part	Title	Page
1.	Introduction	2
2.	Facts	6
3.	Mr. Young’s Personal Circumstances	10
4.	Mr. Young’s Criminal Record	17
5.	Indigenous People in Canada	18
6.	Haida Gwaii	18
7.	Community Impact Statement	21
8.	Current Province of British Columbia Health Emergencies	24
9.	The Purpose and Principles of Sentencing	27
10.	Principles of Sentencing Applicable to Indigenous Offenders	30
11.	Gladue Factors as they Relate to Mr. Young	35
12.	Exceptional Circumstances	42
13.	Collateral Consequences	46
14.	Restorative Justice and Non-Custodial Options	59
15.	Analysis	62
16.	Sentence Imposed	68

 

A Corrigendum was released by the Court on January 18, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

Part 1.            INTRODUCTION

1.            the physical distances involved between Skidegate and Prince Rupert;

2.            the current lockdown of Haida Gwaii by the Haida Nation;

3.            the Provincial Court of British Columbia having suspended court hearings in Haida Gwaii due to the ongoing COVID-19 pandemic; and

4.            the protocols put in place by the Office of the Provincial Health Officer to deal with the ongoing COVID-19 pandemic;

Mr. Young’s desire to enter his guilty plea by telephone at the earliest possible date could and should be allowed pursuant to s. 650(2)(b) of the Criminal Code.

1.            there was a factual basis for a guilty plea;

2.            Mr. Young was making the guilty plea voluntarily;

3.            Mr. Young understood that the guilty plea was an admission of the essential elements of the offence;

4.            Mr. Young understood the nature and consequences of the guilty plea; and

5.            Mr. Young understood that the court was not bound by any agreement made between him, his counsel, and the prosecutor.

Frank Jean YOUNG, on or about the 15th day of February, 2019, at or near Skidegate, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substance Act.

Use of the Terms “Indigenous” and “First Nations”

i.              the common vernacular now in use here in the northwestern part of British Columbia,

ii.            the commentary of Judge Wolf in the decisions of R. v S.R., 2020 BCPC 227 at paragraph 1 and R. v. T.L.C., 2019 BCPC 314, at paragraph 1, and

iii.           two primary sources: Aboriginal Identity & Terminology, Dr. Linc Kesler, Associate Professor, Department of First Nations and Indigenous Studies, University of British Columbia, February 10, 2020, at https://indigenousfoundations.arts.ubc.ca/aboriginal_identity__terminology/ and Indigenous Peoples Language Guidelines, Kevin Ward and Dr. Linc Kesler, 2018, Version 2.0, The University of British Columbia (UBC) in partnership with the First Nations House of Learning at UBC, at assets.brand.ubc.ca/downloads/ubc_indigenous_peoples_language_guide (4).pdf.

Consent Filings: Exhibits and Books of Authorities

1.            R. v. Aguilera Jimenez, 2020 YKCA 5;

2.            R. v. Charlie, 2008 BCCA 44;

3.            R. v. Dick, 2005 BCCA 486;

4.            R. v. Voong, 2015 BCCA 285;

5.            R. v. Gibbon, 2006 BCCA 219;

6.            R. v. Schoenhals, 2008 BCCA 380;

7.            R. v. Trinder, 2008 BCPC 148; and

8.            R. v. Gendron, 2019 BCPC 12.

1.            Pre-Sentence Report with a Gladue component, dated October 2, 2020, prepared by Duong Nguyen of the Prince Rupert Community Corrections Office.

2.            CPIC Level 2 Criminal Record for Mr. Young.

3.            Letter dated June 26, 2020, from Dr. James Chrones of the Haida Gwaii Hospital & Health Centre.

4.            Letter dated December 5, 2019, from Dr. Jordan Koopmans of the Haida Gwaii Hospital & Health Centre Clinic.

5.            Community Impact Statement dated September 23, 2020, authored by Michelle McDonald, Skidegate Band Councillor, on behalf of the Skidegate Band Chief Councillor and Council. With the consent of counsel, Ms. McDonald also verbally presented the Community Impact Statement, with some additional comments, to the court as part of day one of the sentencing proceedings on November 17, 2020.

Position of the Parties

1.            A Conditional Sentence Order is not available to Mr. Young in this case because Conditional Sentence Orders are not available where an offence has a maximum term of imprisonment of 14 years or life (Criminal Code, s. 742.1(c)) or where an offence involves the possession of cocaine for the purpose of trafficking (Criminal Code, s. 742.1(e)(ii)).

2.            The normal range of sentence for a first offence of possession of 3 ounces of cocaine for the purpose of trafficking in a small northern community is between 6 and 18 months incarceration, absent exceptional circumstances. Mr. Sundhu has submitted that 6 to 9 months incarceration may be a more appropriate range in some cases.

Part 2.            FACTS

i.              He had purchased four flaps of cocaine and cigarettes from Roberta at the Young's residence.

ii.            He paid $50 per flap of cocaine.

iii.           He had purchased cocaine from Frank and Roberta approximately half a dozen times.

iv.           In the past, he was heavily using drugs in Nanaimo, but now he only casually uses drugs.

v.            Frank and Roberta have been dealing drugs since he moved to Haida Gwaii.

1.            Three orange syringe-type of items on the living room coffee table with a liquid in them that subsequently tested positive for phytocannabinoids.

2.            A scale on the living room coffee table that subsequently tested positive for traces of cocaine.

3.            Baggies and packaging materials on the living room sofa.

4.            A baggie of white pills on the living room side table. It contained 17 pills and weighed 3.7 grams. A pill subsequently tested as phenobarbital.

5.            A jacket, police located Mr. Young’s wallet in a pocket of the jacket. The wallet had $460 cash inside it.

6.            A baggie with .9 of a gram of a brown substance that subsequently tested as cannabis solids concentrates.

7.            A Turtles chocolates container. Inside the container police located a kitchen knife, spoon, tea baggies, and a scale with residue that subsequently tested positive for cocaine.

8.            In the master bedroom closet police located:

a.         A baggie with white residue,

b.         A 10-dollar bill that subsequently tested positive for having cocaine on it,

c.         A safe with a number of items inside it, including:

i.              $1,150 in cash;

ii.            three clear baggies holding approximately three ounces of crack cocaine: 27.8 grams in one baggie, 27.3 grams in the second baggie, and 27.8 grams in the third baggie;

iii.           A syringe with a brown substance that subsequently tested as a cannabis solid concentrate;

iv.           Documents relating to residency, including documents addressed to Mr. Frank Young relating to an account of some type; and

v.            Documents related to Ms. Roberta Young.

9.            Spread throughout the residence were hundreds of empty small plastic baggies, what are commonly referred to in the drug vernacular as “dime baggies,” and many other packaging materials.

Expert Drug Opinion

1.            why the cost of illicit drugs vary, and

2.            why cocaine is often “cut,” street slang for having other substances added to it in order to change or intensify the effects of the cocaine or to allow dealers to sell less of the actual cocaine for more money.

(i)         the seized cocaine was high quality and not going to be diluted by having some other type of chemical or adulterant added to it, and

(ii)        the seized cocaine was to be sold in one-gram units,

the cocaine seized from Mr. Young’s residence would have been sold, at a minimum, for a total price of between $6,720 and $8,400. If the cocaine was to be diluted or sold in units represented to be a gram but in actuality less than a gram, then the cocaine seized from Mr. Young’s residence could have sold for as much as $11,000.

Part 3.            MR. YOUNG’S PERSONAL CIRCUMSTANCES

Mr. Young’s Health

“With respect to his heart condition as well as his recent aortic aneurysm rupture, these remain stable. He has been managing at home without any special intervention. He is to continue on regular medications, with routine follow-up in the Family Practice office every 6 to 8 weeks…

Frank will have numerous medical encounters over the next several months which are important to his physical well being. It is in his best medical interest to have ready access to his health care providers during this time.”

“It would be expected that his current health conditions, (independently of each other: heart/lung, and lung cancer), and therapy would be significantly adversely impacted by any incarceration in a facility with increased risk of acquiring a COVID-19 illness, for which he is very vulnerable to severe health consequences including premature death.”

And

“Even without a COVID-19 risk of pandemic, his cancer therapy with its intensity, frequency, monitoring, and specialized follow-up all entail a significant unnecessary risk to his health outcome if he were removed from his current support and care environment.”

“1 -- Specialized training of the network and treating team:

He continues to receive a chemotherapy regimen to last one year that began in March 2020 requiring every two weeks: laboratory tests, medical review by GP oncologists, and administration of Intravenous chemotherapy agents. He receives this care at his local home island hospital where there is a BC Cancer Agency Community Oncology Network Site (Haida Gwaii Cancer Care) comprising a specially trained team of nurses, pharmacists, and physicians. While he also has periodic quarterly video consultations with Vancouver Cancer specialists, the day to day care is provided with face-to-face visits. We know him well. There are other such sites in BC, and indeed Prince George has at its university hospital a major oncology team that can manage this sort of care. While BC Correctional Health Services have excellent care and excel at addictions support services, I am not clear if they have staff or connections with the BC Cancer agency Community Oncology Network, so I suspect incarceration would require his ongoing regular transportation for assessments and therapy at such a site. Not impossible, but at best a suboptimal use of resources. Perhaps the addiction support services can be available to him virtually?

2 -- Benefits of being closer to home for support during cancer therapy:

Mr. Young has family supports on Haida Gwaii and this is important for him as he undergoes therapy and in the coming weeks as the upcoming status of his disease response to therapy is further assessed. Currently his treatment goal is for a cure, but if investigations indicate a failure of the current chemotherapy to reduce the tumor that remained after his initial chemo-radiation therapy then he may require contending with a palliative diagnosis and change of treatment regimes. This situation too would be most difficult away from family supports.

I note he is scheduled for a follow-up CT scan on December 11th at Prince Rupert Regional Hospital to assess his cancer disease response to his current therapy. Such investigations are needed periodically (quarterly currently), and while Correctional Services can access these quite readily in Prince George, his treatment decisions based on these results would best be managed by his access to a team that better knows him and his various conditions.

3 – Risks of his health conditions and therapies to exposures from infection:

As noted in the previous letter his multiple heart and lung conditions put him at extreme risk of death from exposure to COVID-19 illness or other transmissible infections such as influenza. These conditions already have necessitated a non-surgical approach to his cancer treatment and a less toxic chemotherapy regime. His Chemotherapy regime still effects his immune system such that it further magnifies his risk, and the benefit from vaccinations is impaired.

4 – The infection itself:

I am highly concerned about the risks of an infection spread in an institutional setting, especially where many younger healthier men live close together. Such a population will be less likely to show illness severe enough to trigger recognition and isolation measures early enough to stop its spread to those such as Mr. Young who are extremely vulnerable to the severe life-threatening outcomes. While exposure risks in the BC Corrections may be currently low, the same can be said about his home islands of Haida Gwaii, and if outbreaks did occur the rapid spread in the institution would far outpace any such spread on the isolated rural setting of his home. This second wave surge of COVID-19 is proving more concerning than what we encountered previously and we cannot take our good record to now as reassurance that all will continue to be so.”

Part 4.            MR. YOUNG’S CRIMINAL RECORD

1981 October 28 (Queen Charlotte, BC)

Driving with more than 80 mg of alcohol in 100 mL of blood, contrary to section 236 of the Criminal Code. $500 fine and a one-year driving prohibition.

1991 March 27 (Queen Charlotte, BC)

Driving while his ability to drive was impaired, contrary to section 253(a) the Criminal Code. $800 fine and a one-year driving prohibition.

2007 October 16 (Queen Charlotte, BC)

Uttering threats, contrary to section 264 of the Criminal Code.

Part 5.            INDIGENOUS PEOPLES IN CANADA

2016 Statistics Canada Census of Population

Part 6.            HAIDA GWAII

Article 2 The People

A2.S1 All people of Haida ancestry are citizens of the Haida Nation.

A2.S2 The Haida Nation reserves the exclusive right to determine additional Haida citizenship through a formal process accepted by the Haida Nation.

A2.S3 Adoption of persons not of Haida ancestry by Haida families does not confer Haida hereditary or aboriginal rights to the land or right to citizenship of the Haida Nation.

A2.S4 No external government or judiciary may impose rights of Haida citizenship to an individual who is not entitled by Haida ancestry.

A2.S5 “Citizen of Haida Gwaii” is an honorary designation, which may be conferred to a person who is not of Haida ancestry. Such bestowal shall not be construed as granting of Haida citizenship or Haida hereditary or aboriginal rights.

“The Haida people have suffered a legacy of violence, abuse, addictions, and suicide. The residential school experience was a significant contributor to the systemic issues that continue to plague the community to this day. The children of the Haida were exposed to cultural, physical, emotional, and sexual abuse while attending the residential schools. The schools were influential in the breakdown of family and cultural knowledge, including the more meaningful skill of parenting. Furthermore, the frustration at the lack of opportunity and trans-generational trauma in the Haida people manifested itself through violence and substance addictions which further deteriorated social bonds. Much of the widespread social and economic dysfunction in Haida Gwaii’s history can be attributed to colonialism and the residential school system.”

Part 7.            COMMUNITY IMPACT STATEMENT

In my role as Skidegate Band Councilor i am speaking on behalf of the entire Council as well as Band members. The only voice we are given within this justice process is to participate by providing this Community Impact Statement. Our community is working hard to address the harms of colonization and residential school on our people. A very large impact has been the use of drugs and the cycle of addiction that exists because of intergenerational trauma. Our Band members come to us to address their fears and complaints around these issues that impact their safety, security and ability to live a peaceful life. The following statements are a reflection of many community members interactions with the Band.

Neighbors are scared of the many people who visit at all hours to purchase drugs. The police are often called out to address issues of firearms, drugs and violence again at all hours. They have pitbulls who are loose and are a safety factor for neighbors. There is an ongoing atmosphere of fear, mistrust and continual disruption. Many of the neighbors are Elders and families who have to live with this chaos everyday. There is a severe impact on the safety and peace of many. People are upset, anxious and worried in their own homes. The community feels nothing will be done as there haven’t been convictions and changes even though this has gone on for years. Neighbors also fear retaliation when they speak out. This is a very real fear and gets in the way of healing and trust.

Community members do not want their children to walk home or play outside or be in the general area. This goes for Elders as well, no one feels safe to move freely in the area. Safety planning has to used just to live in that area, this is unacceptable and unfair. Pitbulls are used as a way to control the area and enforce a fear mentally, this effects neighbors deeply.

Skidegate Band has to put more resources towards patrolling one area, Nightwatchman, has to spend huge amounts of time and energy on this one issue. Band Council uses it’s limited resources on many meetings to address complaints and meet with relevant agencies (RCMP, SHC community members) that could be better used elsewhere. The long term effects of drug dealing are a drain on the whole community and vulnerable addicted individuals use funds they need for rent, food bills to purchase drugs. The cycle of poverty and addiction is playing out endlessly.

Elders, youth and families are fearful of the accused and the type of people that are at the home. They fear retaliation when they speak out. They do not want contact with offender. They also have to worry about theft and vandalism in regards to the desperation that exists from people trapped in the scourge of addiction. They fear for young people who visit, that they will be exploited or preyed upon in the context of drug use or trading favors for drugs. The community doesn’t see that there is a consequence for the behaviors/incidents that continually happen and mistrust that the justice system will protect them.

“I am standing here in my role as a Skidegate Band Councillor for the last five years. My chief and deputy council members have -- have asked me to stand in this call to make sure that our presence is known; that we want to make sure that our statement has been inputted into the court system. And really, I just wanted to be able to report back to my chief and council on the terms of the court case because we were not aware of the situation. We are not always informed on stuff even though we do work with the RCMP. So that's pretty much it. I want to -- you all have our community impact statement. It is from my full chief and council and they all agreed to this.”

“We wrote it all together, everybody put in their input and collaborated it together. And we put it through our council meeting.”

“Well, the one thing that I do want to discuss on behalf of the council, and I have talked to the council just during the recess, to confirm that Frank Young is not a band member. And I can say that on behalf of my chief and council. They have made sure that I emphasize that.

They would like to stress that they would like to see some discipline go to Mr. Young in the form of some jail sentence with some drug awareness program and treatment. There has been years of history with Mr. Young and his family that jeopardizes the health and safety of our membership. And we want to make sure that he gets help.

So -- and being in our community, he will not get help if he has not proven in the past that he has tried to reach out for help before. So we worry that he will continue just doing what he is doing to make a living. And it will keep jeopardizing our people.

We afforded all opportunities to our membership and to our people. We have sent people out for treatment. If they couldn't go and they have had to wait three months, we have sent them out our cost. We have hired Mike Watson. We work closely with the RCMP to try to curb the drug issues and try to make our village safe. We have instilled the Crime Stoppers. We have done everything we can, and we work to create a really solid mental health and addiction team.

So all I can say, Your Honour, is we are trying to be proactive in supporting people with addiction and even the people that have wronged our membership. Like we are doing things with procedural fairness to make sure that our people if they don't continue complying to give health and safety to our people then we have tools of banishment in our -- our -- our kits and we have used it in the past. I -- I can say that this is not something we have discussed, but these are the tools that the band has in their -- if we feel that health and safety to our people will be jeopardized. And that's my statement.”

Part 8.            CURRENT PROVINCE OF BC HEALTH EMERGENCIES

Unintentional Illicit Drug Toxicity Deaths in BC

•              Street drugs (illicit fentanyl, cocaine, methamphetamine, MDMA, heroin, etc.).

•              Medications not prescribed to the decedent but obtained/purchased on the street, from unknown means or where origin of drug not known.

•              Combinations of prescribed medications with illicit fentanyl, cocaine, methamphetamine, MDMA, heroin, etc.

COVID-19 Pandemic

COVID-19 Statistics

COVID-19 Vaccines

Priority Vaccine Groups

•              Residents, staff and essential visitors to long-term care and assisted-living residences;

•              Individuals in hospital or community awaiting a long-term care placement;

•              Health care workers providing care for COVID-19 patients in settings like Intensive Care Units, emergency departments, medical/surgical units, and paramedics; and

•              Remote and isolated Indigenous communities.

•              Community-based seniors, age 80 and above; Indigenous seniors, age 65 and above;

•              People experiencing homelessness and/or using shelters;

•              Provincial correctional facilities;

•              Adults in group homes or mental health residential care;

•              Long term home support recipients and staff;

•              Hospital staff, community GPs, and medical specialists; and

•              Other Indigenous communities not vaccinated in first priority group.

Part 9.            THE PURPOSE & PRINCIPLES OF SENTENCING

THE CONTROLLED DRUGS AND SUBSTANCES ACT

Purpose of sentencing

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Factors to take into consideration

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,

(i) carried, used or threatened to use a weapon,

(ii) used or threatened to use violence,

(iii) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or

(iv) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years;

(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1) of the Cannabis Act;

(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence.

Reasons

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

Drug treatment court program

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender

(a) to participate in a drug treatment court program approved by the Attorney General; or

(b) to attend a treatment program under subsection 720(2) of the Criminal Code.

Minimum punishment

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.

THE CRIMINAL CODE OF CANADA (as it was on February 15, 2019)

Purpose

718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community

that is caused by 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 acknowledgment of the

harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, National or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act;

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Part 10.         PRINCPLES OF SENTENCING APPLICABLE TO INDIGENOUS OFFENDERS

Residential Schools and Systemic Discriminations

“The 1600’s saw the first European-missionary operated schools, however recruitment and retention were major obstacles as parents were unwilling to send their children away, and many children that did enroll ran away to return home. After the War of 1812, the “Indian Problem” became a priority when military and trade needs became unnecessary with First Nations communities. The Government of Canada gradually adopted policies focused on assimilating First Nations people, and by 1920 it became mandatory for children between the ages of seven (7) and fifteen (15) to attend residential schools, which were purposefully placed far away from communities to deny any chance of interaction with their traditions and family. Parents who refused to send their children were prosecuted under the “Truancy Provisions of the Indian Act”. Parents would surrender their children to authorities, not knowing if they would ever see their children again. They would suffer with feelings of shame and guilt, and of failing their children. Survivors of the residential schools recount stories of sexual assault, torture, medical experimentation, violence, poisoning, starvation, and freezing. St’ Anne’s Catholic residential school (operational from 1904 to 1973) had an electric chair in the basement. Furthermore, many schools were underfunded and relied on student labour to remain functional. Students would spend half of their time cooking, cleaning, tending to livestock, and general labour; things they could learn at home with their family.

In 1907, Dr. Peter Bryce, Medical Inspector for the Department of Indian Affairs, investigated thirty-five (35) western Canadian residential schools. Dr. Bryce released his findings, which emphasized extremely unsanitary and unsafe conditions in the schools. He projected a survival rate as low as 58% for First Nations children attending residential schools, and found schools that were in operation for longer periods of time also saw an increase in student mortality. In other words, out of one-hundred (100) students that would attend some schools, only fifty-eight (58) would return home to see their families again. The Department of Indian Affairs would ultimately ignore Dr. Bryce’s report. Over the course of one-hundred and twenty-five (125) years, one-hundred and fifty thousand (150,000) children were removed from their families and sent to residential schools. It is estimated between thirty-two thousand (32,000) and six thousand (6,000) children died at residential schools. This uncertainty in deaths can be attributed to a common practice of unmarked graves and poor record keeping, and in some cases, intentionally hiding grave sites.

Many First Nations people survive with direct and secondary trauma from the residential school experience, and cope dysfunctionally. Children would return home not knowing how to communicate with their parents, having lost their language. A major aspect of learning in First Nations traditions is through storytelling, where lessons and knowledge are passed from Elders to the next generation. Having no way to communicate effectively killed the children’s link to their heritage and way of life, essentially leaving numbers of children that are both rejected and discriminated against by European Canada, and having no connection with their home, family, or culture. This loss of identity and time during crucial developmental stages of youth would leave many young people lost and unconnected, and in the absence of meaningful social bonds would then adopt self-destructive and anti-social behaviours. Instead of nurturing and affectionate relationships of their village and family, many survivors knew only the cold and uncaring reality of residential schools. They would enter adult life not knowing how to express affection to their own children, and often instead expressed themselves through the authority, control, and force that they were familiar with.

First Nations people have suffered a legacy of systemic discrimination through economic and social deprivation which have manifested into communities suffering from substance abuse and violence across generations. Through the policy of assimilation, colonial attitudes based on cultural, racial, and spiritual superiority attempted to replace the values and wisdom of First Nations’ culture, heritage, and spiritual tradition. Residential schools were advertised as a means to educate and civilize, but in practice was a means of eradicating First Nations culture, heritage, and traditional practices from the people. The legacy of residential schools is that of First Nations peoples today struggling with persisting substance abuse, violence, sexual abuse, shame, and intergenerational trauma all of which contributes to perpetuating community dysfunction and overrepresentation in the criminal justice system.”

R. v. Gladue

We are taught at paragraph 27 of Gladue that the interpretation of s. 718.2(e) must begin by considering its words in context. Although the appeal in Gladue was ultimately concerned only with the meaning of the phrase “with particular attention to the circumstances of aboriginal offenders,” the Court noted that the phrase takes on meaning from the other words of s. 718.2(e), from the purpose and principles of sentencing set out in ss. 718, 718.1 & 718.2, and from the overall scheme of Part XXIII of the Criminal Code.

In our view, s. 718.2(e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case.

…should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction.

…In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime.

[72] The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment. Yet in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

[73]  In describing in general terms some of the basic tenets of traditional aboriginal sentencing approaches, we do not wish to imply that all aboriginal offenders, victims, and communities share an identical understanding of appropriate sentences for particular offences and offenders. Aboriginal communities stretch from coast to coast and from the border with the United States to the far north. Their customs and traditions and their concept of sentencing vary widely. What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.

R. v. Ipeelee

Part 11.         GLADUE FACTORS AS THEY RELATE TO MR. YOUNG

1.            If an offender self-identifies as an Indigenous person, is that sufficient to bring the offender within s. 718.2(e)’s “with particular attention to the circumstances of Aboriginal offenders” and the Gladue analysis? 

2.            If no, is there both a subjective and objective component to determining if an offender is an Indigenous person for purposes of s. 718.2(e) and the Gladue analysis? There will be no requirement for a sentencing judge to consider this second issue if the answer to the first issue is “yes.”

1.            The offender who lives their life self-identifying as Indigenous, although they are not biologically Indigenous; and

2.            The offender who has not lived their life self-identifying as Indigenous, but finding themselves before a judge for sentencing, claim that they are Indigenous.  

“[47] Mr. Balison correctly submitted that the court may consider many of the factors that Ms. Antoine has raised without applying the Ipeelee and Gladue factors. The court is required to consider all relevant background of Ms. Antoine and weigh it against all other relevant factors to sentencing.”

“Certainly all of her other factors both mitigating and aggravating are to be considered. This would include the circumstances in which she has found herself these last few decades. However, these considerations can be factored into sentencing without extending the very specific and purposeful Gladue and Ipeelee principles meant to be encompassed specifically in s. 718.2(e).”

[17] As noted earlier, a Gladue report was also prepared. It is a bit puzzling why this was done, as there is no evidence that Mr. Lawrence is aboriginal, has an aboriginal background, or self-identifies as aboriginal. The sole reference to aboriginal background is Mr. Lawrence's speculation that there may have been indigenous lineage on his mother's side and that his father was a member of a First Nations from the Prince George area. However, Mr. Lawrence's mother said her family was not aboriginal and she did not know why her son would believe his father was aboriginal. The manager of a Prince George area Band that was referenced by Mr. Lawrence did not support Mr. Lawrence's claim that his father was a member of that First Nations. Mr. Lawrence's paternal uncle told the Gladue report author that Mr. Lawrence's paternal grandparents were of Scottish-Canadian heritage, not aboriginal heritage.

[18] Accordingly, there are no Gladue considerations to take into account in this case. Nonetheless, the Gladue report in this case added some further information that was useful in understanding aspects of Mr. Lawrence's life and character.

“[8]      The appellant grew up not knowing he was adopted. He assumed that his heritage was Finnish and French, like his adoptive parents, but he was often challenged by other kids on this point, who suggested he had other ancestry.

[9]        When the appellant was between 16 and 18 years old, his adoptive father told him of the adoption. This came as a shock to him, and the realization of the loss of both his adoptive mother and his birth mother led to feelings of abandonment, resentment, and a sense that he was unwanted.

[10]      The appellant began trying to locate his birth parents in or around 2007 or 2008. Around the same time, his adoptive mother came back to live with his adoptive father, but her relationship with the appellant was difficult.

[11]      As a teenager, the appellant became interested in what he called “black culture.” He listened to hip hop music and wore baggy clothes. He also developed a fascination with guns, gangs and aggression.

[12]      The appellant has struggled with his identity and his adoption. However, he has now found his birth mother, and has successfully completed a number of rehabilitative Aboriginal programs. He has embraced his Aboriginal heritage.”

Issue 1 Conclusion:

Issue 2 Conclusion:

Next Considerations

i.              the evidence of the offence before the court;

ii.            the personal circumstances of the offender, including the unique systemic or background factors which may have played a part in bringing the offender before the courts;

iii.           the statutory purpose and principles of sentencing;

iv.           the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of their particular heritage or connection to an Indigenous community; and

v.            the relevant case law.

The sentencing judge then crafts a sentence specific to the offender before the court.

1.            poverty;

2.            substance abuse;

3.            a lack of employment opportunities;

4.            a lack of access to education;

5.            bias against Indigenous peoples;

6.            intergenerational trauma;

7.            emotional and physical violence;

8.            connection with the Indigenous heritage/culture he claims;

9.            criminal history;

10.         mental health diagnoses;

11.         early death of family or friends because of substance abuse, violence or suicide;

12.         family breakdown;

13.         dysfunctional behaviour; and

14.         committing violence, being the victim of violence or witnessing violence.

i.              Although Danny Young is Haida, it is unclear from the Pre-Sentence Report and Mr. Sundhu’s submissions what, if any, education and mentoring Mr. Young received growing up or as an adult in Haida culture, history, and way of life.

ii.            There is no evidence before the court that colonialism and the systemic discrimination suffered by the Haida people affected Mr. Young in any way. As a settler himself, Mr. Young has no history of displacement connected to the history of the Haida or Indigenous peoples generally.

iii.           Danny Young was fortunate not to have gone to residential school. The same is true for Danny Young’s parents. And while colonialism, systemic discrimination, and the legacy of the residential school system have no doubt affected Danny Young, I have not been presented with any evidence that suggests the horrific experience of Indigenous peoples with the Canadian residential school system played any role whatsoever in Mr. Young’s life.

iv.           Growing up with his mother and Danny Young, it appears as though Mr. Young had a rather ordinary childhood. The move at the age of 12 from Calgary to Skidegate does not seem to have impacted Mr. Young, other than perhaps in relation to Mr. Young beginning to consume alcohol.

v.            Mr. Young was not abused as a youngster, did not attempt suicide, was not placed into foster care, and has not had mental health issues, other than with his addictions. He does not have a personal history of incarceration.

vi.           There is no history of intergenerational trauma in Mr. Young’s family history. It does not appear that Mr. Young has a history of committing violence, being the victim of violence, or witnessing violence.

vii.         There is no evidence that Mr. Young suffered from prejudice or racism related to his self-identification as Indigenous.

viii.         There is no evidence of early death related to Mr. Young’s family or friends because of substance abuse, violence, or suicide.

ix.           I am unclear as to how Mr. Young’s relationship with Danny Young or the Haida people in any way, shape or form, translated into Mr. Young attaining a lower education, less income, or contributed to his addiction to alcohol and cocaine.

x.            Mr. Young is a grade twelve graduate and he immediately found employment in the logging industry as a heavy machine operator upon his graduation from high school in 1978. He worked with Eleanor Excavating for about 20 years, followed by 13 years with Thompson Logging. His primary work was road construction and operating large machinery. Mr. Young claims that he had a near-perfect work record.

xi.           Mr. Young was able to retire from lawful employment in 2015, long before his 65th birthday.

xii.         Mr. Young claims that he does not hold any significant debt. He currently receives a total of approximately $1,800 per month in pensions from CPP and the IWA, and he may soon be withdrawing from his RRSP.

Conclusion

Part 12.         EXCEPTIONAL CIRCUMSTANCES AND MR YOUNG

[19]      Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather than impose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)). If an offender who is on probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before the court for sentencing. At that point, the judge may impose any sentence that could have been imposed at the time the sentence was suspended (s. 732.2(5)(d)).

[20]      If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optional conditions (s. 732.1(3)(a)-(g.2)). Under s. 732.1(3)(h), the Court may also impose any other “reasonable condition … for protecting society and for facilitating the offender’s successful reintegration into the community.”

[21]      Suspended sentences were imposed in drug trafficking cases before CSOs became available in1996 (introduced by the Act to amend the Criminal Code (sentencing) and other Acts in consequences thereof, S.C. 1995, c. 22). A suspended sentence is still a sentencing option in law in the cases at bar, as there is, at this time, no minimum sentence for the offences at issue.

[22]      Where a suspended sentence was imposed in drug trafficking offences prior to the availability of a CSO, there was always an indication of exceptional mitigating circumstances. For example, in R. v. Harding, [1977] B.C.J. No. 839 (C.A.), this Court dismissed a Crown appeal and upheld a suspended sentence with three years’ probation with strict conditions, for a heroin addict who sold four caps of heroin. She had made significant steps towards overcoming her heroin addiction, and the majority concluded they should not interfere with the carefully reasoned sentence. The majority found that the trial judge had recognized that deterrence was of foremost importance but concluded that in the circumstances of the case before him, rehabilitation was worth the effort. The trial judge was alive to the fact that he could sentence her if his expectations of rehabilitation were not born out, and she breached the probation order.

[23]      In R. v. Huang, [1993] B.C.J. No 1118 (C.A.), this Court dismissed a Crown appeal upholding a suspended sentence and three years’ probation for an offender who pleaded guilty to possession of one ounce of 90 percent pure heroin for the purpose of trafficking. The offender was 18 years old at the time, attending community college and had no prior record. Although this Court and the sentencing judge expressed reservations about a sentence other than incarceration, this Court concluded that the sentence was carefully considered and declined to interfere with it. Similarly, see R. v. Yamanaka, [1994] B.C.J. 521(B.C.C.A.).

[37]      A probation order has primarily a rehabilitative objective, however, as the statutory terms refer to the purposes of “protecting society” and “reintegration into the community”, it is not limited to this objective.

[38]      What is required for the imposition of an optional condition in a probation order is a “nexus between the offender, the protection of the community and his reintegration into the community” (R. v. Shoker, 2006 SCC 44 at para. 13).

[39]      A suspended sentence has been found to have a deterrent effect in some cases. Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the “Sword of Damocles” hanging over the offender’s head. For example, in R. v. Saunders, [1993] B.C.J. No. 2887 (C.A.) at para. 11, Southin J.A. said:

Deterrence is an important part of the public interest but there are other ways of deterring some sorts of crime than putting someone in prison who has no criminal record as this appellant did not. The learned trial judge did not turn her mind to whether the deterrence which is important might be effected by certain terms of a discharge or a suspended sentence such as a lengthy period of community service.

[40]      This Court, in Oates, recently confirmed that Saunders stands for the proposition that deterrence might be effected with a suspended sentence (Oates at para. 16).

[41]      In Shoker, at para. 15, the Court concluded that supervised probation is a restraint on the probationer’s freedom.

[45]      The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence.

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

[61]      A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect. And, as Esson J.A. stated in Chang, the fact of being arrested, tried and convicted, can also address these principles. In other words, the stigma of being a convicted drug trafficker and the consequences of that conviction—for example, restricted ability to travel outside of Canada and exclusion from many forms of employment—may also play a deterrent effect.

1.            Mr. Young has a criminal record, albeit unrelated to the offence that I am sentencing him for.

2.            Other than quitting cocaine “cold turkey” on September 20, 2020, Mr. Young has taken no significant and objectively identifiable steps towards rehabilitation for his drug addiction.

3.            Although Mr. Young blames his drug addiction for his decision to get into the drug dealing business, he has pled guilty to the offence of possessing three ounces of cocaine for the purpose of trafficking. The court has not been provided with any evidence as to the daily quantities of cocaine Mr. Young was regularly consuming in February of 2019. Nor has the court been told if Mr. Young was, in February of 2019, a powder cocaine user, a crack cocaine user, or perhaps both.

4.            Based on the evidence before the court, including the dollar values for the cocaine seized in this case, the only conclusion I can draw is that Mr. Young was making a profit from his cocaine drug dealing in excess of the funds he required to support his personal addiction. In other words, he was not simply trafficking in cocaine to support his own addiction. He was a professional drug dealer.

5.            At 61 years of age, Mr. Young has been retired from his lawful employment in the logging industry since 2015. The only rational conclusion I can draw is that even with his self-professed cocaine addiction, Mr. Young has an excess of funds available to him.

6.            On January 12, 2021, Mr. Young apologized to the Court and said he was sorry. I have taken into consideration Mr. Young’s apology. Despite the apology, I do not see any indication from Mr. Young that he acknowledges, never mind regrets, the harm drug dealing generally, and his drug dealing in particular, has had on the community in Skidegate and elsewhere in Haida Gwaii. Rather, as expressed in the Pre-Sentence Report and as set out above, Mr. Young sees his drug dealing as a community service.

7.            There is nothing in the Pre-Sentence Report, the submissions of Mr. Sundhu, or the words spoken by Mr. Young, that leads me to conclude that Mr. Young has truly turned his life around. I hope that Mr. Young has quit cocaine as he told me on January 12, 2021. If he has, he has a life long struggle in front of him to remain committed to an illicit drug-free life.

8.            I am unable to find that Mr. Young has remorse, other than the irritation he may very well feel having been found out, charged and having to go through the sentencing process. I acknowledge and appreciate that in R. v. Slobbe, 2011 BCCA 107, at paragraphs 44 to 48, the Court of Appeal clarified that a lack of remorse is not an aggravating factor on sentencing. Furthermore, as the Supreme Court of Canada confirmed in R. v. Friesen, 2020 SCC 9, at paragraph 165, “Remorse is a relevant mitigating factor (see Lacasse, at paras. 77-78). However, remorse gains added significance when it is paired with insight and signs that the offender has “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” (R. v. Anderson (1992), 1992 CanLII 6002 (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536 (emphasis in original)).”  Accordingly, I believe that the lack of remorse is a relevant factor when considering if exceptional circumstances exist in a given case.

9.            I cannot find that the protection of the public would be better served by Mr. Young receiving a non-custodial sentence.

Conclusion

Part 13.         COLLATERAL CONSEQUENCES

14        The second ground involves two alternative propositions:

(a) the judge erred in giving no consideration to the health issue; or

(b) if he did, he failed to give it sufficient weight.

15        The second ground is founded on the concern that the appellant may not live out his sentence.

16        The judge made reference in his reasons to the Bakker case (R. v. Bakker, (25 March 1986), Victoria CA005366 (B.C.C.A.)) where Craig J.A. giving reasons for the court noted that the appellant was coping with his health problems in custody and said at p. 3 of his reasons:

If our sole concern was the welfare of Mr. Bakker and the welfare of his family, a sentencing court and this court could well accede to the request made by Mr. Harris. However, we cannot deal with cases on a sympathy basis. The courts have said, time and again, that public fraud must be treated severely.

It should be noted that the sentence under appeal in Bakker was two years less a day and that the health problems were emotional in nature and not life threatening.

17        As quoted above, the judge in the instant case found that the appellant's medical problems were properly left to the corrections authorities to deal with. That approach plus his reference to the Bakker case, lead me to conclude, not without some doubt, that the judge dismissed the health factor as a relevant consideration.

18        It does not appear that the judge was cited the decision of this court in R. v. Dusanj (25 January 1989), Vancouver CA008963 (B.C.C.A.) where the circumstances bear a much closer resemblance to those at bar. In that case the accused was sentenced to concurrent ten year terms for conspiracy to import heroin and conspiracy to traffic in heroin. Seaton J.A. said that it was most unlikely that the accused could survive a sentence of ten years. At p. 3 of these reasons he said:

The trial judge was of the view that he could not take this factor into account in fixing a sentence. The Crown concedes that to be wrong. I think that a court can, purely on compassionate grounds, take this sort of thing into account. I do not think in the circumstances the sentence can be reduced enough so that the appellant will likely serve the sentence and go free. It is unlikely that he will live long enough to serve any sentence that could possibly be fit for the offences of which he was committed.

But that is not the end of the inquiry. By reducing a sentence, the time for day parole is reduced and so on. So I think that this factor ought to affect the sentence and that the trial judge erred in his conclusion that he could not take it into account.

19        The different approaches taken in Bakker and Dusanj can be reconciled by an appreciation of the very different facts in each case. Sympathy was obviously not an appropriate factor in Bakker where the illness was not life-threatening and the sentence was much shorter than that imposed in Dusanj and in this case. In my view, a sentencing court ought to give effect to a plea of mitigation on compassionate grounds where there is a substantial risk that the accused will not live out the sentence. This is such a case. I have not ignored the submissions made by counsel for the Crown that the current information as to the appellant's cardiac status shows that he is coping in jail but, with respect, I do not think that meets the concern about the appellant's life expectancy.

[47]      The potential risk posed by the pandemic if Mr. Stevens were sentenced to a period of custody is best characterized as a “collateral consequence” as contemplated in R. v. Pham, 2013 SCC 15. It relates to the principle of proportionality espoused in s. 718.1 of the Criminal Code. The potential impact of Covid-19 on an offender sentenced to prison may result in the offender serving a sentence which is disproportionate to the offence and his or her degree of moral responsibility. A prison sentence can mean the offender is placed at risk of contracting a potentially harmful disease or is subjected to lengthy periods of lockdown, lack of stimulation, and social isolation. When viewed against the offence they committed, what would otherwise be a fit sentence may become increasing disproportionately punitive.

[48]      “Collateral consequences” may be taken into account as personal circumstances of the offender. Collateral consequences address situations where a particular sentence would have a more significant impact on the offender because of his or her circumstances (R. v. Suter, 2018 SCC 34). The Ontario Court of Appeal in R. v. Morgan, 2020 ONCA 279 (CanLII) characterized the effects of Covid-19 in custody as falling into the category of collateral consequences for sentencing purposes. In R. v. Lemmen, 2020 BCPC 67, Judge McCarthy also characterized the issue of conditions of incarceration during Covid-19, as being the impact of a collateral consequence.

[49]      The impact of collateral consequences does not displace the general rule that a sentence must be fit, having regard to the particular crime and offender. A sentencing judge may take collateral consequences into account, provided the sentence ultimately imposed is proportionate to the gravity of the offence and degree of responsibility of the offender. The farther away the varied sentence is from the range of otherwise appropriate sentences, the less likely it will be proportionate (Pham, at paras. 14 and 15).

[50]      Collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender (Morgan, at par. 10). In Morgan, the accused sought to reduce his “otherwise fit” sentence in light of Covid-19. The Court dismissed the appeal and concluded that any potential remedies respecting the impacts arising from Covid-19 could be addressed through the Parole Board.

[51]      In R. v. Dakin, 2020 ONCJ 202 the Court said that Covid-19 must be balanced with other sentencing principles, and the sentence cannot bring the administration of justice into disrepute, or be contrary to the public interest. The Court would have imposed a sentence of 10 months, but slightly reduced it to 8.2 months to allow the offender’s immediate release on time served.

[52]      In R. v. Hearns, 2020 ONSC 2365 Pomerance, J. said at par. 23:

[23]  Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty - be they direct or collateral - cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, 2020 NLPC 1319A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:

In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

[53]      After discussing the need for “humanity,” Justice Pomerance concluded that where a period of time served can address sentencing principles, even imperfectly, a release from prison is a fit an appropriate response. She acceded to the joint submission before her, finding 33 months’ time served and 3 years’ probation was sufficient to reinforce the objective of protecting the public in the case of an aggravated assault.

[54]      In R. v. Parasmothy, 2020 ONSC 2314, the Court commented that there has been a move towards decreasing the inmate population as a result of the pandemic by release on bail and creative sentences which avoid incarceration. However, those measures should not be confused as meaning the default position will be for all people to remain out of custody where custody is necessary and warranted (par. 140).

[55]      Counsel have provided the decision of R. v. Kandhai, 2020 ONSC 1611 in which the accused plead guilty to possessing a prohibited firearm together with readily accessible ammunition. The Crown’s sentencing position was four to five years and the Defence position was three years. While the Court referred to the pandemic as a “significant factor” warranting a time served disposition, the Court was also influenced by the fact the accused was entitled to presentence credit of 45 months, and was therefore “in the general neighborhood of the Crown’s position.” The sentencing judges in Lemmen and R. v. McGrath, 2020 ONCJ 192 both interpreted Kandhai as authorizing the imposition of a slightly more lenient sentence to achieve time served, provided the sentence was still fit and within the range. By contrast, the sentence proposed by counsel for Mr. Stevens is materially outside the range.

[56]      In McGrath, the accused was found guilty of various firearms related offences including possession of a loaded handgun. The Defence sought a sentence of 520 days time served, while the Crown sought a sentence of 1825 days jail. The accused cited Covid-19 as the basis for a time served sentence. Distinguishing Kandhai, Judge Berg noted the accused’s position was “not in the general neighborhood” or “anywhere close” to the Crown’s position. He says at par. 28:

[28]  While the decision of the Superior Court in Kandhai is indeed predicated to an extent on the existence of the pandemic, it does not stand for the proposition that all other sentencing principles and factors must be held in abeyance as the illness runs its course though our society. What it does stand for is the principle that where there are urgent exigent circumstances, an offender who has served most of an anticipated appropriate sentence can receive a lesser sentence to mitigate those circumstances. This was made patently clear by Harris J.in the last sentence of paragraph 7 of the decision: "[g]iven how much time he has served thus far in custody, it is in Mr. Kandhai's interest and the public's interest as well, that he be released at this point in time."

[57]      In assessing how the pandemic would impact the accused if incarcerated, Judge Berg observed he was no less vulnerable than offenders who commenced serving their sentences before the outbreak. It was his view that a reduction of sentence predicated solely on the existence of Covid-19 would be arbitrary as persons already serving their sentences could not benefit even though they faced the exact same level of risk. The Judge ultimately sentenced the offender to three and a half new years’ jail.

[58]      In R. v. Laurin, [2020] O.J. No. 1266 (ONCJ) the accused plead guilty to dangerous driving causing death. The trial judge stated that had a fit sentence been only a few months more of custody, he would have little hesitation in reducing the sentence to time served. However, having found a fit sentence was three years (which necessitated 12.5 new months of custody), he declined to reduce the sentence to allow for time served.

[59]      In Lemmen, the Crown sought four and a half years’ jail for various firearms offences, while the Defence sought a non-custodial conditional sentence order in light of Covid-19. Judge McCarthy declined to order time served, concluding that in order to make a “significant reduction” to what would otherwise be a fit sentence requires sufficient evidence of the collateral impact of Covid-19, which was not before him. With respect to proportionality, he says at par. 188:

[188]  … While courts must be able to react appropriately to important changing conditions in extraordinary times, in cases such as this one there must still be an adherence to the established laws of sentencing. That must continue, notwithstanding any immediate exigencies at any given time. Were it otherwise, the Rule of Law will be eroded and public trust and confidence in our judicial system will be harmed.

[60]      Judge McCarthy concluded he could not put “any significant weight” on the existence of the pandemic in arriving at his sentence and imposed a four and a half year sentence sought by Crown.

[61]      Counsel have also provided the decision of Judge Kwolek in R. v. Wilson, 2020 ONCJ 176 in which the offender plead guilty to assault causing bodily harm. Judge Kwolek articulated that in imposing sentence the court “must recognize and consider Covid-19 implications and the provisions of s. 718.2 of the Criminal Code” (par. 37). However, he ultimately decided that given the accused’s history of violence a further period of incarceration was appropriate and a conditional sentence order was not, notwithstanding Covid-19 concerns.

[62]      In R. v. Haynes, [2020] O.J. No. 1982 (ONCJ), the Crown sought a sentence of 730 days while the Defence sought a sentence of 646 days’ time served. The Court qualified that its consideration of the Covid-19 virus and the offender’s submissions must be balanced with other sentencing principles, and the sentence cannot bring the administration of justice into disrepute nor be contrary to the public interest. The Court concluded that the Covid-19 factor did not justify reducing the sentence to a time served position.

[63]      In short, while Covid-19 must be taken into account in sentencing Mr. Stevens, it cannot justify the imposition of a sentence that is disproportionate to the degree of seriousness of the offence and his moral responsibility or would otherwise be contrary to the public interest. He is not in the same situation as other offenders for which a non-custodial sentence is still a fit sentencing option.

[64]      Mr. Stevens has not adduced any specific evidence demonstrating how a further period of jail would expose him to significant collateral consequences, tipping the balance of proportionality in favour of a time served sentence. He has no particular health or other issues which would make a custodial sentence unduly harsh or punitive. DeWitt-Van Oosten, J.A. in R. v. Myles, 2020 BCCA 105 declined to release the appellant on bail pending appeal on the basis of Covid-19 in circumstances where the court was provided no information about the specific level of risk faced by the appellant, his health vulnerabilities or steps taken by the institution to mitigate the risk.

[51]      In my consideration of this matter, I have reflected upon the comments set out in Hearns. Here, I note that there was no evidence introduced to show the current impact of COVID-19 upon the federal or provincial institutions; and, more importantly, with respect to Mr. Greer himself, in terms of whether or not he suffers a suppressed or compromised immune system. Mr. Greer, in his comments to the court, did provide some insight into his personal situation and the restrictions in movement, programming, and visitation that he has experienced while at the Pretrial Centre; and I accept the fact that there are certainly some restrictions imposed, as a result of the current circumstances.

[52]      Any sentence imposed must be guided by the statutory and common law principles of sentencing. That said, it was suggested that COVID-19 may reduce the requirement of parity with previously established ranges, or may justify a departure from the usual range of sentence in certain circumstances; and here, I refer to R. v. Lacasse [citation omitted]. The defendant requests the court grant a reduction in what would otherwise be an appropriate sentence, based on the potential prospect of difficulties posed by the current pandemic that the defendant may be subject to.

[53]      While I have considered this, I am not inclined to do so in these circumstances for the following reasons. I do not know for how long such restrictive conditions may continue and in what form. Not enough is known at this point, as to whether conditions may improve, worsen, or remain the same. As a result, it appears to me to be speculative to assess the impact. Again, as I noted previously, there is no specific evidence concerning the particular health issues or risks, if any, that are faced by Mr. Greer; and finally, I would draw upon the comments in the Ontario Court of Appeal case of R. v. Morgan, 2020 ONCA 279, discussing the impact of COVID-19 at para. 12, where the Court states:

[12]      That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.

[54]      Based on the circumstances and information that I have before me at this juncture, it strikes me that any impact that COVID-19 may have upon Mr. Greer and the sentence received is best left in the hands of the parole authority in this province.

[134]   On the effects of COVID, Mr. Zhao's counsel cited the thoughtful reasons of Justice Pomerance, a well known criminal law authority, in R. v. Hearns, 2020 ONSC 2365. In that decision, Pomerance J. concluded that the current pandemic and the conditions that it will create in prisons, whether through the risk of infection or the kind of restrictive lockdown that Mr. Zhao has experienced, may justify a departure from the usual range of sentence in appropriate circumstances. In her analysis, Pomerance J. drew an analogy to the principles that can lead to the reduction of sentences for state misconduct, or for collateral consequences that would make a sentence harsher for the offender than it might otherwise have been.

[136]   I adopt that approach here and would not give specific effect to the impact of COVID on Mr. Zhao's correctional experience, either thus far or prospectively. I note that in a subsequent decision - R. v. Costello, 2020 BCSC 1206, at para. 76 - Justice G.P. Weatherill appeared to endorse Hearns, but he did so only generally and in passing, and so if a conflict between these two authorities actually exists, I would adopt the more extensive reasoning in Greer.

[21]      I think it is fair to say that when Mr. McKibbin was sentenced, no one in the courtroom predicted a global pandemic that would have particular deleterious effects on someone with a respiratory disease. It is clear to me that had this information been available to the sentencing judge, it “could be expected to have affected the result”.

[22]      In my view, in the unusual circumstances of this case, the evidence does meet the criteria in Sipos. I would admit the fresh evidence.

[23]      The evidence adduced changes the landscape in which Mr. McKibbin was sentenced. The sentencing judge concluded that the fact that “[his] medical ailments would make a jail sentence harsher on him than if he were healthy” did not amount to exceptional circumstances justifying a suspended sentence.

[24]      The evidence before us is that not only would serving the sentence be harsher, but if he contracted COVID-19, it could well lead to an early death, which in my view does amount to circumstances justifying a suspended sentence. Normally, the prison authorities would be delegated the responsibility of managing a prisoner’s illness in the prison, and they are usually equipped to do so. However, given that Mr. McKibbin faces a significantly higher risk of death if he contracts COVID-19 because of his serious pre-existing respiratory disease, and given that he has a very short time left to serve in his sentence, it makes no sense to me to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province. If he is at home, Mr. McKibbin can control who he has contact with, something that he cannot do in the prison setting.

[25]      This is an unusual case. The sentence imposed by the sentencing judge was without error, and but for the fresh evidence, I would not interfere with the sentence. It is also unusual in the sense that it is not just the COVID-19 pandemic that has changed the sentencing landscape, but the pandemic in the context of Mr. McKibbin’s serious respiratory illness, which makes him much more susceptible to serious COVID-19 symptoms, including death.

[26]      I would allow the appeal, suspend the six-month sentence passed by the sentencing judge, and place Mr. McKibbin on probation for that period with conditions. Mr. McKibbin indicated that he was prepared to be supervised on probation for 18 months in addition to the time he has served. Frankly, I see no reason to burden the provincial authorities with a further supervision order.

[134]   The import of McKibbin is that, in the absence of concrete evidence of significant risk to an offender's physical health, the fact of COVID-19 on its own does not result in a reduction of the length of a custodial sentence to be imposed, or count as a factor in reducing a sentence below the range otherwise supported by the case authorities. Rather, the matter is best left to the parole authorities to assess as outlined in Greer and Zhao.

(i)            the unintentional illicit drug toxicity overdose deaths crisis, and

(ii)         the COVID-19 pandemic.

Correctional Health Services

•              Medical and nursing care

•              Mental health and substance use treatment programs and services

•              Basic emergency response services

•              Public health services such as flu immunization clinics

•              Urgent dental care

•              Pharmacy services

•              X-ray imaging and lab work

•              Health-related discharge planning to help clients transition successfully to community-based care

Assessment

“…the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 (a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity.”

And at paragraph 12 of Pham:

However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . .

. . .

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.]

(The Law of Sentencing (2001), at pp. 136-37)

Conclusion:

Part 14.         RESTORATIVE JUSTICE AND NON-CUSTODIAL OPTIONS

1.            Holding Mr. Young accountable for his conduct;

2.            Assisting in Mr. Young’s rehabilitation and reintegration into the local community;

3.            Ensuring that Mr. Young receives the help he needs to address his cocaine addiction and his various ongoing health issues;

4.            Listening to and understanding the needs of the local community;

5.            Making the court responsive to the needs of the Haida people; and

6.            Increasing public confidence in the administration of justice.

i.              The Haida Gwaii Health Centre, operated by Northern Health, offers telephone counselling and group programs through telephone conference. A local Skidegate resource, the Strong Mind House, a division of the Skidegate Health Clinic, is not currently taking new clients. Northern Health does not currently offer pharmaceutical interventions for crack/cocaine addiction.

ii.            In pre-COVID-19 times, the Skidegate Health Clinic would send people suffering from addictions to residential treatment centres such as Tsow-tun Le Lum Substance Abuse Treatment Centre, located in Lantzville, BC, near Nanaimo BC, or Round Lake Treatment centre, located at Grandview Flats North Armstrong, BC, near Vernon BC.

iii.           The First Nations Health Authority has very recently begun a Virtual Substance Use and Psychiatry Service. It is available to First Nations people and their families living in British Columbia upon receipt of a referral from a health and wellness provider. The purpose of the Virtual Substance Use and Psychiatry Service is to:

1.            Provide direct virtual access to addictions specialists and psychiatric care for First Nations people and their family members living in BC.

2.            Provide addictions medicine and psychiatry services where every client encounter is aligned with the principles and practices of cultural safety and humility.

3.            Provide addictions medicine and psychiatry services where collaborative care planning and wraparound care services are integral to all client encounters.

iv.           The First Nations Health Authority also offers a “Virtual Doctor of the Day” program, which provides virtual access to primary care (family practice physicians) for First Nations people and their families living in BC.

v.            Prince Rupert Community Corrections CORE programming, which includes Substance Abuse Management, is a program that explores and provides clients with insight into their own addictions. It also teaches tools to manage and/or cease substance misuse. Pre-COVID-19 pandemic, Probation Officer Frank Morven would attend Haida Gwaii once per month to meet with clients, but he has been unable to attend Haida Gwaii or offer programs this year due to the current COVID-19 pandemic.

Part 15.         ANALYSIS

1.            Ms. Switzer as counsel on behalf of the Public Prosecution Service of Canada;

2.            Mr. Sundhu as counsel on behalf of Mr. Young;

3.            Mr. Young;

4.            Mr. Nguyen of Community Corrections in Exhibit 1;

5.            The various individuals who spoke with Mr. Nguyen as recorded in Exhibit 1;

6.            Ms. McDonald on behalf of the Skidegate Band Council in Exhibit 5 and the in court delivered verbal Community Impact Statement;

7.            Dr. Chrones in Exhibits 3 and 6; and

8.            Dr. Koopmans in Exhibit 4.

i.              Social sharing,

ii.            Small volume retail seller, often earning just enough money to support a personal drug addiction, and

iii.           Busy retail seller or full-time commercial operation.

[1]        Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison.

And at paragraph 18:

[18]      This Court has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drug traffickers. While no one principle “trumps” the other, there are offences and circumstances where one or more principles come to the forefront and generally will be given more weight than others.

[54]      The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences . . . is secondary to the fundamental principle of proportionality. This Court explained this as follows in C.A.M.:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[58]      There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. . . .

Mitigating Factors

1.            A guilty plea was entered, which I accept as:

a.            Mr. Young recognizing and admitting that his possession of 3 ounces of cocaine for the purpose of trafficking was unlawful;

b.            Mr. Young saving valuable court time and saving the State the expense of a multiday trial;

c.            Mr. Young sparing witnesses the time and expense of attending a Trial; and

d.            Mr. Young giving closure to the Skidegate community.

2.            Mr. Young’s criminal record is minor and is not associated to the present offence. At age 61, this is his first drug trafficking conviction.

3.            The collateral consequence that I have found related to the ongoing COVID-19 pandemic, Mr. Young’s health issues, and his need for more chemotherapy treatments.

4.            Mr. Young’s statement to the Court on January 12, 2021, that he apologizes for the actions that brought him before the Court in the present case.

5.            Mr. Sundhu’s submission to the Court that Mr. Young quit cocaine “cold turkey” as of September 20, 2020.

6.            As per Mr. Sundhu’s submission, the stigma that attaches to a conviction for being a drug dealer in a small community. Where everybody knows everybody and everybody knows everybody else's business. With Mr. Young having been convicted as a drug trafficker, everybody is going to know. The result being that Mr. Young will not have that anonymity and lessened stigma that one might have in a larger population centre.

Other Considerations

1.            the circumstances and gravity of the offence,

2.            Mr. Young’s personal circumstances,

3.            the moral blameworthiness of Mr. Young,

4.            the purpose and principles of sentencing, and

5.            sentences imposed on similar offenders in similar circumstances.

a.            unfit,

b.            a disproportionately lenient sentence, or

c.            one that would put the public at risk.

Part 16.         SENTENCE IMPOSED

To allow Community Corrections to assist you in understanding, treating, monitoring and overcoming your cocaine addiction;

To allow Community Corrections to assist you to understand the harm done to the community by drugs and drug dealing;

To help in your rehabilitation;

To allow Community Corrections to assist you in your reintegration into the community as a law abiding member;

To allow you to provide reparations for harm done to the community; and

To promote a sense of responsibility in you.

The Probation Order will be as follows:

2101. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or 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.

2104 (modified). You must report in person or by telephone to a probation officer at the Prince Rupert Community Corrections office, located at 132 – 1st Avenue West, Prince Rupert, British Columbia, telephone numbers 1-250-624-7435 and 1-877-602-2288, within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer.

2201. When first reporting to your probation officer, you must provide him or her with the address where you will live and your telephone number. You must not change your address or telephone number without prior written permission from your probation officer.

2501. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

2516 (modified). You must attend, participate in and complete a restorative justice program to address the impact of your crime on the community as directed by your probation officer.

2509 (modified). You must complete 100 hours of community work service as directed by your probation officer. Your community work service must be completed within the first 520 days of your probation. Any hours spent receiving counselling under this probation order will result in a one for one reduction in your community work service hours.

I now turn to the ancillary orders:

DNA

Firearms and Weapons

Victim Fine Surcharge

Forfeiture

Warrant of Committal on Conviction

 

 

_______________________________________

The Honourable Judge D. Patterson

Provincial Court of British Columbia

CORRIGENDUM - Released January 18, 2021

In the Reasons for Sentence dated January 15, 2021, the following changes have been made:

[1]         Paragraph 147 should read:

Mr. Young does not come within the group of peoples entitled to the benefit of s. 718.2(e)’s “with particular attention to the circumstances of aboriginal offenders.”  He is not entitled to the benefit of the Supreme Court of Canada’s direction to sentencing judges to undertake the process of sentencing Indigenous offenders differently. I see nothing in his personal circumstances, or in the manner Mr. Young committed the offence, that leads to the conclusion that Mr. Young’s moral blameworthiness is lessened due to systemic factors or individual Gladue factors.

 

 

_____________________________

The Honourable Judge D. Patterson

Provincial Court of British Columbia