Citation:	R. v. Bitternose
	2023 BCPC 6
Date:		20230110
File No:		242294-1
Registry:		Surrey

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

Criminal Court

 

 

 

REX

 

 

v.

 

 

OWEN REGINALD BITTERNOSE

 

 

     

 

 

     

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE V. CHETTIAR

 

 

 

Counsel for the Crown:	Emma Waterman
Counsel for the Accused:	Dale Melville
Place of Hearing:	Surrey, B.C.
Date of Hearing:	October 3, 2022
Date of Judgment:	January 10, 2023

 

                                                                                                                                                           

                                                                                                                                                           

                                                                                                                                                           

                                                                                                                                                           

INTRODUCTION

Count 1: Owen Reginald BITTERNOSE, on or about the 7^th day of November, 2020, at or near Surrey, in the Province of British Columbia, did possess a prohibited firearm, restricted firearm, or non-restricted firearm, without being the holder of a licence under which he may possess the firearm, or without being the holder of a registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code.

Count 3: Owen Reginald BITTERNOSE, on or about the 7^th day of November, 2020, at or near Surrey, in the Province of British Columbia, did possess a firearm, prohibited weapon, restricted weapon, prohibited device, a modified SKS rifle, while he was prohibited from doing so by any order under this Act or any other Act of Parliament, contrary to Section 117.01(1) of the Criminal Code.

CIRCUMSTANCES OF THE OFFENCES

CIRCUMSTANCES OF THE OFFENDER

(a)     Mr. Bitternose was born on [omitted for publication] in Regina, Saskatchewan. He is 45 years of age now, and was 43 years at the time of the index offences.

(b)     Mr. Bitternose is Saulteaux/Cree and a member of the George Gordon First Nation.

(c)     Mr. Bitternose has an older sister M., older brother Q., and younger sisters L. and V. He has two children: daughter D., aged [omitted for publication], and son J., aged [omitted for publication].

(d)     Mr. Bitternose’s sister L. was murdered in 2019, his mother G.B. passed away in 2000 or 2001 from cirrhosis as a result of chronic alcoholism, and his father V.B. passed away in 2021 from Covid-19.

(e)     Multiple generations of Mr. Bitternose’s family attended the Gordon’s Indian Residential School, including his grandparents, parents, brother and himself. At around age five, Mr. Bitternose attended this residential school for about four years, where he was sexually abused. The Gordon’s Indian Residential School is infamous for its abuses of children, and it was one of the last residential schools in Canada to close in 1996.

(f)      Mr. Bitternose’s parents were severe alcoholics. Mr. Bitternose describes his mother as a “scary person.” He and his brother lived with their paternal grandparents on the George Gordon First Nation, whereas his sister M.B. lived with their maternal grandparents on the Standing Buffalo First Nation, which was about an hour from the George Gordon First Nation. However, Mr. Bitternose was separated from his sister M. until he was 19 years of age.

(g)     After Mr. Bitternose’s paternal grandparents passed away, he and his brother went to live with their aunt and uncle in Regina, where he began Grade 3. He was active in sports and enjoyed being social. However, he experienced a lot of racism in the city.

(h)     Mr. Bitternose did not have contact with his parents during his childhood and youth.

(i)      Even though his aunt and uncle provided a stable home, Mr. Bitternose started getting into trouble at about age 12. He became involved in substance use and criminal activity with his friends. He quit school after Grade 8. He was in juvenile detention. He spent the majority of his teen years in custody. At age 18, he was released from custody. He began working in Regina. However, he continued to struggle with his alcohol and other substance addictions.

(j)      Mr. Bitternose’s offending continued, as an adult. He has an unenviable criminal record. The Crown points out that Mr. Bitternose has been convicted of an offence at least once a year since 1996. Mr. Bitternose’s offences gradually escalated from property and driving related offences to more serious and violent offences, including aggravated assault, assaulting a peace officer, robbery, and discharging a firearm with intent. At the time of the index offences, Mr. Bitternose was already on two mandatory lifetime firearm bans.

(k)     Mr. Bitternose has spent a significant part of his adult life in federal custody, including at the Special Handling Unit (“SHU”) in Quebec. He spent two years and nine months at the SHU, one year in Edmonton, and in a Saskatchewan penitentiary for 11 years. He was then released from federal custody in May 2020. He came to Vancouver, British Columbia, to extricate himself from further negative influences in Saskatchewan.

(l)      While incarcerated, Mr. Bitternose’s aunt and uncle passed away from cancer in 2018 and 2019, respectively.

(m)   Mr. Bitternose’s sister-in-law, S.M., states that Mr. Bitternose has endured a lot of trauma in his life, he was incarcerated consecutively from 2004 to 2020, and that when she met him upon his release in 2020, “he was so happy.”

(n)     After his release, Mr. Bitternose started working in construction in Vancouver, which he says he really loved.

(o)     However, in the summer of 2021, Mr. Bitternose was hospitalized with pneumonia and a double lung infection. He was in a coma for 10 days. He is unable to physically exert himself as he used to. He has been placed on permanent disability. He expresses frustration with his inability to work, as it brought him joy and purpose. He believes he is in good mental health. He has not been diagnosed with any mental disorder. He denies any serious traumatic brain injury, but shared that he was hit by a car at age five and spent weeks recovering.

(p)     At the time of the sentencing hearing, Mr. Bitternose was registered at the [omitted for publication] and was in the process of completing courses to obtain his high school diploma. He was attending this program four days per work. After this, his intention is to enrol in computer courses, and also get his trade ticket to become an equipment operator.

(q)     Mr. Bitternose is currently living with his girlfriend, M.S., who has known him personally for about two years. She indicates that she has known about Mr. Bitternose for the past 20 years. She came to Vancouver looking for work, and has resided with Mr. Bitternose ever since she arrived in Vancouver. She describes Mr. Bitternose as a “social,” “kind and positive” person, who enjoys going on walks and keeping himself busy.

(r)      Ms. M. describes Mr. Bitternose as a “pleasant” and “very well mannered” person. She emphasizes that Mr. Bitternose has the “potential to do really well, but he needs to be around the right people.” She says, he has “stepped away from gang life” and he “realizes that those people are not his family.”

(s)     Mr. Bitternose’s sister V.K. says Mr. Bitternose has “good communication skills,” that he is a “hard worker,” and “[h]e’s really good at talking with people. He’s a really loving guy. Even though he went to residential school, he can show emotions.”

(t)      Mr. Bitternose is currently unemployed, and he receives social assistance benefits. He is on methadone, and is said to be abstinent from illicit substances and alcohol. He smokes marihuana on a regular basis.

(u)     Mr. Bitternose has insight into his past addiction issues, and understands how anti-social peers can influence him and his future. He regrets associating with the unknown individual who punched the plexiglass in the cab he was in, and says he feels “stupid and foolish” for involving himself with people he knows can get him into trouble. Although he maintains he was not aware of what was in the bag this other individual left behind in the cab, he understands that “by associating with ‘those’ types of people he would be risking issues with the law.”

(v)     Mr. Bitternose has been compliant with his bail conditions from the time he was placed on them on November 9, 2020 in relation to the index offences. For the past two years, he has not incurred any new charges or had any negative police contact. The PSR notes that Mr. Bitternose’s “history of non-compliance in the community only exist[s] in his youth, as it is his only substantial time outside of custody.”

(w)   Mr. Bitternose is said to be respectful, and he has maintained good communications with his bail supervisor.

(x)     Mr. Bitternose does not have contact with his band currently and does not receive any funding or support. The PSR notes that Mr. Bitternose shares respect for his culture, but does not feel it is an investment, and that it is not a priority for him. However, the Gladue Report indicates that Mr. Bitternose recognizes the benefits of the following restorative justice and community treatment options and would accept the opportunity to participate:

a.   trauma counselling through the First Nations Health Authority – Indian Residential Schools Health Resolution Support Program;

b.   further academic upgrading with the assistance of staff in Indigenous Advising at [omitted for publication] after he completes his Adult Basic Education certificate;

c.   the Employment, Life Skills & Training program provided by the Vancouver Aboriginal Friendship Centre Society; and

d.   access to housing support through the Urban Aboriginal Navigation Team – Community Housing Support Services and the TLC (Tenant-Landlord-Community Relations) Project.

CROWN’S SUBMISSIONS

DEFENCE’S SUBMISSIONS

EFFECT ON THE VICTIM(S)

PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING

(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 acknowledgement of the harm done to victims or to the community.

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,...

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.

DISCUSSION

[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: see C.A.M., supra 80; R. v. Johnson (1996), 1996 CanLII 3148 (BC CA), 112 C.C.C. (3d) 225 ¶33, 84 B.C.A.C. 261. . . .

[37]      The assignment of blameworthiness for a particular course of conduct depends not only on the circumstances of the offence, but also on the nature of the offender. The fundamental principle of sentencing requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

There is no doubt that the existence of illegal guns on the streets is a serious problem. . . . there is no purpose for a sawed off shotgun but to intimidate or seriously harm someone. 

Any sentence imposed by the court has to be sufficiently severe to reinforce the message that illegal possession of firearms will not be tolerated and reflects societies [sic] abhorrence for this type of offence. . . . the potential for serious injury or even death is magnified by just the presence of such a weapon.

[59]      . . . s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

[60]      . . . To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. . . .

Mitigating Circumstances

(a)  Mr. Bitternose has pled guilty to the index offences, avoiding the need for a trial, thereby saving valuable court time and resources.

(b)  Although Mr. Bitternose does not remember how he came into possession of the Rifle, he admits he had knowledge of it even though he did not own it or make any modifications to it, and he accepts responsibility for its possession and his offending. He is genuinely remorseful for what happened.

(c)  Mr. Bitternose has been compliant with his bail conditions for the past two years, and he has not committed any new offence.

(d)  Mr. Bitternose comes from a significantly disadvantaged background, and has suffered significant abuse and trauma throughout his life.

(e)  Mr. Bitternose currently suffers from health issues (serious lung infection), and has been placed on medical disability.

(f)   Despite his past and current challenges, Mr. Bitternose has taken concrete and steady efforts to turn his life around, including the following:

a.   Although Mr. Bitternose has had a long history of substance addiction, he has been clean and sober for the past two years.

b.   Mr. Bitternose, of his own volition, has been attending counselling to address his past trauma.

c.   Mr. Bitternose is in the process of completing his high school diploma at the [omitted for publication], and he intends to continue his education by enrolling in computer classes and also getting his trade ticket to become an equipment operator.

(g)  Mr. Bitternose is described as a kind, loving, positive and hard working person. He has the support of his girlfriend, and his close family members.

Aggravating Circumstances

(a)  Mr. Bitternose has a significant criminal record, including serious violent offences that includes a related firearm conviction for discharge of a firearm with intent.

(b)  Mr. Bitternose was placed on three s. 109 mandatory firearms prohibition orders, in 1999, 2003 and 2005, respectively. He was subject to the latter two orders for lifetime firearms prohibition when he committed the index offences.

(c)  Mr. Bitternose was found in possession of the Rifle in a taxi, in a public place, while intoxicated.

[53]      Proulx is the leading case on CSOs. In the context of this case, the following principles from Proulx are germane:

1.         CSOs were introduced to address the problem of over-incarceration in Canada by reducing reliance on incarceration as a sanction and increasing the use of restorative justice principles;

2.         CSOs must be distinguished from probation. While probation is primarily a rehabilitative tool, CSOs have both punitive and rehabilitative aspects;

3.         Generally, CSOs should include punitive terms that restrict an offender’s liberty, such as house arrest;

4.         Unless the Code excludes a CSO as a sentencing option, there should be no presumptions for or against the use of a CSO in relation to any specific offence;

5.         A sentencing judge is not required to first impose a prison term of fixed duration and then consider if it can be served in the community. Rather, the sentencing judge should reject a penitentiary term and probation measures as inappropriate and then consider whether the remaining option of imprisonment of less than two years could be appropriately served in the community;

6.         A CSO need not be of the same duration as the sentence of incarceration that would otherwise have been imposed. All that is required is that the CSO is a fit sentence;

7.         The requirement that the sentencing judge be satisfied that the safety of the community would not be endangered by the offender serving their sentence in the community is a condition precedent to the imposition of a CSO;

8.         In making this threshold determination, the sentencing judge should consider the risk posed by the specific offender and not the broader risk of whether a CSO would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law;

9.         A CSO can provide significant denunciation and deterrence. Generally, the more serious the offence, the longer and more onerous the CSO should be;

10.      In some cases the need for denunciation or deterrence may be so pressing that incarceration will be necessary;

11.      Generally, a CSO will be better than incarceration at achieving restorative objectives, such as rehabilitation, reparations and promoting a sense of responsibility in offenders;

12.      Where a combination of both punitive and restorative objectives may be achieved, a CSO will likely be more appropriate than incarceration; and

13.      A CSO may be imposed even though there are aggravating circumstances that increase the need for denunciation and deterrence.

[46]      This provision lists four criteria that a court must consider before deciding to impose a conditional sentence:

1)   the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

2)   the court must impose a term of imprisonment of less than two years;

3)   the safety of the community would not be endangered by the offender serving the sentence in the community; and

4)   a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

(a)  The index offences are not punishable by a minimum term of imprisonment.

(b)  The term of imprisonment being imposed is less than two years.

(c)  The safety of the community would not be endangered by Mr. Bitternose serving the sentence in the community, as he will be placed under very strict conditions, including curfew, and monitored for a lengthy period of time. He has done well on his release order for the past two years.

(d)  Mr. Bitternose indicated to the court that he is focused on completing his Grade 12 education and then getting his trade ticket as an equipment operator, as he enjoyed his work in the construction industry. He has a stable home with his girlfriend, and they are both attending counselling for trauma issues. He is moving forward with his life in a positive and pro social manner.

(e)  A CSO is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2, as it strikes a balance between the need to denounce, deter, protect the public, keep Mr. Bitternose (as an Indigenous offender) out of prison, and to give Mr. Bitternose the opportunity to rehabilitate himself.

(f)   Mr. Bitternose has spent the better part of his life in jail. He appears resolute from the time he was placed on the release order in November 2020 to change his life around. He appears to have made effective use of this time by engaging in self-reflection, making plans for his future, and attending educational programs and counselling to assist in his rehabilitation. It serves no purpose to incarcerate him, adding to the overrepresentation of Indigenous offenders in custody.

(g)  The CSO is a measured approach to allow Mr. Bitternose to continue with his rehabilitative efforts and pursue the recommendations made in the Gladue Report, but at the same time protect the public, as it is a fairly lengthy sentence to be served in the community under tight conditions, and in the watchful eye of his conditional sentence supervisor.

(h)  The CSO also serves as a specific deterrence to Mr. Bitternose, as he may end up having to serve the balance of his sentence in custody if he breaches the CSO.

SENTENCE

Conditional Sentence Order:

TERM OF THE ORDER	First, you must comply with a conditional sentence order for a term of 24 months less one day. The conditions are as follows:
COMPULSORY CONDITIONS 3001	You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your 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. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province.
REPORT 3103	You must report in person to a conditional sentence supervisor at Suite 102, 14245 56 Avenue, Surrey, British Columbia, by 3:00 p.m. tomorrow, January 11, 2023, and after that, you must report as directed by your conditional sentence supervisor.
ADDRESS: NO CHANGE WITHOUT CONSENT 3201	When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without the prior written permission from your conditional sentence supervisor.
CURFEW 3209-1	For the first 12 months of this order: 1.   You must obey a curfew by being inside the place where you live and regularly sleep between 9:00 p.m. and 6:00 a.m. The exceptions are: a.   You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for education, employment, or other reasonable purposes. b.   You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. (You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor.) 2.   You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. 3.   If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. 4.   If a peace officer finds you outside the place where you are living during the curfew hours and requests to see the permission, you must show it to the officer.
CHANGES IN EMPLOYMENT/ RELATIONSHIP STATUS 3212	You must provide your conditional sentence supervisor with the details of your employment status. You must inform your supervisor within two business days of any change in your employment status.
NO ALCOHOL OR DRUGS 3400	You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription.
NO GO LIQUOR OUTLETS 3403	You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence.
COUNSELLING 3501	You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for: a.   alcohol or substance use; b.   mental health; and c.   trauma recovery.
FIREARMS AND WEAPONS PROHIBITION 3610	You must not possess directly or indirectly any weapon as defined by the Criminal Code. Including: a.   firearms and ammunition; b.   crossbows, prohibited or restricted weapons or devices, or explosive substances; c.   anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d.   any imitation firearms or weapons, including any compressed air guns, BB or pellet guns; or e.   any related authorizations, licences and registration certificates, and you must not apply for any of these.

Probation Order:

length OF probation order 2000-1	You must comply with the probation order for a term of 24 months. The conditions are as follows:
COMPULSORY CONDITIONS 2001	You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation.
REPORTING AFTER COMPLETION OF CONDITIONAL SENTENCE 2104	You must report in person to a probation officer at Suite 102, 14245 56 Avenue, Surrey, British Columbia, within two business days after completion of your conditional sentence, unless you have obtained before completion of your conditional sentence, written permission from a probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer.
ADDRESS: NO CHANGE WITHOUT NOTICE 2202	When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without notifying your probation officer, in writing, at least seven days before making the change.
NO ALCOHOL OR DRUGS 2400	You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription.
COUNSELLING 2501	You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for: a.   alcohol or substance use; b.   mental health; and c.   trauma recovery.
FIREARMS AND WEAPONS PROHIBITION 2610	You must not possess directly or indirectly any weapon as defined by the Criminal Code. Including: a.   firearms and ammunition; b.   crossbows, prohibited or restricted weapons or devices, or explosive substances; c.   anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d.   any imitation firearms or weapons, including any compressed air guns, BB or pellet guns; or e.   any related authorizations, licences and registration certificates, and you must not apply for any of these.

ANCILLARY ORDERS

Firearms Prohibition Order

DNA Order

VICTIM SURCHARGE

CONCLUSION

 

 

_____________________________

The Honourable Judge V. Chettiar

Provincial Court of British Columbia