R v Willier, 2016 ABQB 241

Court of Queen ’ s Bench of Alberta Citation: R v Willier, 2016 ABQB 241 Date: 20160502 Docket: 140089194Q2 Registry: Edmonton Between: Her Majesty the Queen - and - Tyson Ray Willier Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _______________________________________________________ [ 1 ] On April 27, 2016, Mr. Tyson Willier appeared before me for sentencing. At the hearing, I indicated that I would provide additional written reasons for my decision.

Throughout these Reasons, I will refer to Tyson by his first name, since several people share his surname in this story; and to his mother by initials to protect her privacy. I. Introduction

[2] Tyson entered pleas to a number of charges including possession of drugs and possession of guns. His counsel conducted aGladue hearing to demonstrate to the Court that the Gladue factors have profoundly shaped Tyson’s life, and advocated that a fit andproper sentence must be determined through the prism of the Supreme Court of Canada decisions in R v Gladue, [1999] 1 SCR 688, (SCC), and R v Ipeelee, 2012 SCC 13. [3] Tyson’s case presents a classic problem.

The offences Tyson has committed are serious and would ordinarily call for apenitentiary sentence, bearing in mind mitigating factors, including admissions of guilt.

The sentencing provisions of the Criminal Code,RSC 1985, c C-46, and the jurisprudence call for a consideration of the Gladue factors which operate to mitigate that sentence.Furthermore, a penitentiary sentence would not be conducive to fashioning a sentence that is tailored to meet the goals and objectives ofthe sentencing provisions, nor would a penitentiary sentence accommodate Tyson’s expressed desire to attend residential treatment andpursue a healthy, pro-social life under the supervision of the Court, his family, and his community at Sucker Creek First Nation. [4] The optimal supervisory regime is the conditional sentence order, since the Court then retains the ability to entrust theoffender with an opportunity for rehabilitation, where appropriate, under terms suitable to the circumstances, but still wield the ultimatesanction of imprisonment, should he prove unworthy.

However, even though the application of credit for time in custody as contemplatedby R v Summers, 2014 SCC 26, might operate to reduce the sentence to less than two years, a conditional sentence is not available as thepre-conditions of the Criminal Code are not met: R v Fice, 2005 SCC 32. [5] As sentencing judges, we are bound to consider the many factors commended to us by Criminal Code sentencing provisionsand by the jurisprudence. Once the Gladue factors set the context and operate to mitigate the penal consequences, the crucial question ishow to fashion the individual penalty in accordance with the law.

In my view, at the heart of these cases is the question of whether theoffender demonstrates the motivation and personal strength to change, to divert the trajectory of his life from the collision course withcommunity and his own well-being, to a path of constructive membership in his community and society, or whether the intergenerationaland systemic problems are so deeply engrained as to foreclose this possibility of change. [6] As the Supreme Court of Canada recognized in Gladue and Ipeelee, the problems for aboriginal offenders are different thanfor others – we see that these offenders’ lives show the consequences of colonialism and residential schools that have destroyed theirculture and communities in a systemic way that is unlike any other.

As sentencing judges, we are obliged to look at innovativeapproaches to sentencing aboriginal offenders in an attempt to ameliorate these conditions, to contribute to the efforts to redress theproblem of over-incarceration of aboriginal offenders, and to try to meet the goals of deterrence through rehabilitation.

The SupremeCourt of Canada has put the responsibility upon sentencing judges to follow their lead when the opportunity presents itself. [7] Tyson sat through three days of evidence about his behaviour and his life: a heartbreaking description of his childhood fromhis mother, an in-depth analysis of his psychological make-up from an expert witness, expressions of filial devotion from his brother,and thorough submissions from both counsel.

Tyson said that he had not seen or understood how his actions are viewed from theperspective of the community, or that his conduct causes fear in others, until this Gladue hearing. Guns and drug trafficking activitieshave been part of his day-to-day experience during his childhood and youth, in Sucker Creek and Edmonton. These activities werenormal features of his life and perceived by him to be normal as he grew into adulthood.

The root causes of his offending behaviour arethe historical disadvantage so eloquently described by the judgments of Gladue and Ipeelee. [8] Tyson was, in effect, asking the Court to take a chance on him, because he wants to change.

As sentencing judges, we havethe power to influence the treatment of aboriginal offenders in the justice system; it is we who determine “...whether an aboriginaloffender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a senseof balance to the offender, victim, and community, and in preventing future crime” (per LeBel J, in Ipeelee, at para 61, quoting Gladue atpara 65). II. Facts A. The Offences [9] Tyson entered pleas of guilty to these counts, all arising on May 24th, 2012: 2.

That he had in his possession handguns for a purpose dangerous to the public peace (or for the purpose of committing anoffence), contrary to section 88(1) of the Criminal Code of Canada. 4. That he used or carried handguns in a careless manner, contrary to section 86(1) of the Criminal Code of Canada. 7. That he had possession of loaded prohibited or restricted firearms, or prohibited or restricted firearms together with readilyaccessible ammunition capable of being discharged in the firearms, contrary to

section 95 of the Criminal Code of Canada. 9. That he possessed firearms knowing that he was not the holder of a licence under which he may possess them (and in the case of aprohibited or restricted firearm, the holder of a registration certificate for the firearm), contrary to section 92(1) of the Criminal Code ofCanada. 11. That he possessed firearms, handguns, without being the holder of a licence under which he may possess them (and in the case ofa prohibited or restricted firearm, a registration certificate for the firearm), contrary to section 91(1) of the Criminal Code of Canada. 13.

That he possessed handguns knowing that the serial number on them had been altered, defaced or removed, contrary to section108(1)(

b) of the Criminal Code of Canada. 15. That he unlawfully possessed a controlled substance, cocaine, for the purpose of trafficking, contrary to s 5(2) of the Controlled

Drugs and Substances Act . 16. That he unlawfully possessed a controlled substance, oxycodone, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . 17. That he unlawfully possessed Canadian currency of a value not exceeding five thousand dollars knowing that all (or part) of the property (or proceeds of the property) was obtained by the commission in Canada of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code of Canada . 18. That he, being at large on his recognizance, being bound to comply with a condition of that recognizance requiring him to refrain from the purchase, possession, use or consumption of any non-prescribed illegal drugs, failed to comply with that condition, contrary to s 145(3) of the Criminal Code of Canada . 19.

That he, being at large on his recognizance requiring him to not be found in possession of any firearms, ammunition, explosives or any other types of weapon whatsoever, did fail without lawful excuse, to comply with that condition, contrary to s 145(3) of the Criminal Code of Canada . 26. That he, on or about the 24 th day of May, 2012, at or near Edmonton, Alberta, did unlawfully and wilfully obstruct Det. Fisher #2093, a peace officer, in the execution of his duty, contrary to

Section 129 (

a) of the Criminal Code of Canada . B. Circumstances of the Offences [ 10 ] Counsel agreed to facts that constitute the elements of these offences. On May 24, 2012 at 2:40 p.m., members of the Edmonton Police Services (EPS) responded to a call that there were “shots being fired”. While searching the area, Cst. Williamson observed the Accused walking towards him. Tyson was looking behind him and did not notice the police vehicle idling towards him. Cst. Williamson stopped the vehicle and stepped out. Tyson was startled. He took a black gym bag off his shoulder and held it between his hands in front of his chest.

The Constable engaged him in conversation and Tyson hurriedly pushed the bag over the fence into a yard. [ 11 ] Since the police had responded to a weapons complaint, and given the circumstances, Cst. Williamson drew his service pistol. Tyson appeared to be very scared and nervous, almost in a panic state. Cst. Born had arrived on scene and handcuffed Tyson as Cst. Williamson provided cover. [ 12 ] Tyson’s gym bag was recovered.

It contained ballistic body armour, an assortment of plastic bags, pill bottles, two boxes of 9 mm Luger 115 grade jacketed hollow point ammunition, one loose 9 mm round of ammunition, ten 45 mm jacketed hollow point bullets, a model 17 Glock 9 mm pistol wrapped inside a sock (it was found to have an empty chamber but was loaded with nine rounds in the magazine), and another unloaded pistol, a .45 calibre P45 Khar. Both pistols had their serial numbers ground off.

Tyson did not have valid licenses or registration certificates for the weapons. [ 13 ] Also recovered from the gym bag and Tyson’s person were 185.8 grams of cocaine in a plastic bag, another 5.5 grams of cocaine in a plastic bag, 60 OxyNEO (oxycodone) 40 mg pills, 92.5 Endocet (oxycodone) pills, and another 44 Endocet pills in a plastic bag. The approximate total street value of the various drugs was in the range of $20,992.50 – $27,362.50. [ 14 ] During the arrest process, Tyson gave his brother’s name (Devon) as his own. After a period of time, however, he admitted to his own name. [ 15 ] Det.

Fisher retrieved a cell phone from Tyson’s right pocket and a large amount of folded and rolled up cash from his left front pocket. Tyson was then put in the back of the police vehicle out of range of police radio communications. During this time, the cell phone was ringing every 2 to 5 minutes.

Tyson was arrested, Chartered and cautioned, taken to North Division Station and placed in cells. [ 16 ] Expert evidence established that the amount of cocaine and oxycodone, together with the money, weapons, ammunition, bullet proof vest, and cell phone were indicative of drug trafficking, and that they were in Tyson’s possession for that purpose. C. Evidence concerning Gladue Factors

(1) Tyson’s mother [ 17 ] Tyson’s mother testified on his behalf. Ms. M. is now a registered nurse who works in Kapawe’no First Nation, near Grouard, Alberta in the area of Lesser Slave Lake. She lives, along with her husband, in Sucker Creek First Nation, a community that is a 20 minutes’ drive from Kapawe’no and a 15 minutes’ drive from High Prairie. Her husband has been an oil field worker for 20 years. [ 18 ] Leo Houle, Tyson’s biological father, lives in Edmonton. [ 19 ] Ms. M. testified about Tyson’s family background.

I found her to be a credible and sympathetic witness as well as an accurate, articulate historian. In describing events and circumstances in the years when Tyson was growing up, she did not spare details. She accepted responsibility for what transpired in their lives, even though it was unnecessary to do so. She found the process of recounting their lives difficult. Ms. M. managed to escape what might have been her destiny, given her antecedents as described in her evidence. [ 20 ] Ms. M. testified that her biological parents separated when she was three years old.

Her biological mother, Tyson’s maternal grandmother, now lives in Peavine, a Metis colony near High Prairie. Her mother suffers from addictions which have always plagued her. Ms. M. has no contact with her mother. As a child, Ms. M. and her siblings would go back and forth between their parents’ houses.

Both her parents are residential school survivors. [ 21 ] Ms. M.’s father re-married twice during M’s childhood. His second wife committed suicide. Ms. M. has half-siblings from her father’s other marriages. Ms. M. spent the years, as she grew up, living between her father’s home and her mother’s. When life was intolerable with one, she would go live with the other. [ 22 ] Throughout this time, Ms. M’s father suffered from a severe alcohol addiction and smoked marijuana a lot.

His main source of income was selling marijuana, an activity that occupied his days. [ 23 ] Returning from a visit to British Columbia when Ms. M. was twelve years old, she found that neither parent was fit to retrieve her from the bus depot. She decided she was done with both of them. She was homeless, staying with friends, and finding food in peoples’ gardens. [ 24 ] By the time she was 13 years old, she was encouraged by her mother to make a living for them on the street. She was living a street life with no other option for survival. [ 25 ] Ms. M. was close to 14 years old when she met Mr.

Houle, Tyson’s father. He was living in a rooming house in downtown Edmonton. Though she was surrounded by drinking and marijuana use, she found a measure of protection with him. She was 14 years old when she became pregnant with Tyson. [ 26 ] Ms. M. was 15 years old when Tyson was born. At the age of 6 months, Tyson had epileptic-like episodes; he would hold his breath, turn blue, go limp, pass out, and wake up like nothing happened. This continued until he was two years old. He was given an EEG but it did not reveal a cause. [ 27 ] The couple lived between Goodfish Lake First Nation, Mr.

Houle’s home, Sucker Creek, and Edmonton. Eventually they settled in Sucker Creek when Ms. M.’s father bought a condemned house and moved it onto his property for the family. They had three boys in rapid succession, Tyson, Clinton, and Devon. [ 28 ] Mr. Houle was a binge drinker, and very jealous. Like Ms. M.’s father before him, when sober he was a good man; when drunk, he was violent. The couple split up for good after an incident where Ms. M. was violently assaulted in their home. As a result of court process, Mr. Houle was diagnosed with schizophrenia.

He was behaving strangely and she became afraid, as he was starting to be violent even when not drinking. She encouraged him to leave. By then, she was 18 years old; Tyson was 3, Clinton 2, and Devon 6 months old. [ 29 ] After Mr. Houle left, the drinking and violence continued in the home of her own father and step mother, though her father quit drinking in 2000, after Devon was born. Ms. M. continued living in Sucker Creek with her children, though not in the same house. To her, the boys seemed okay; they were well-behaved. Tyson was an honour student. However, he was angry with Ms. M. because Mr.

Houle had left them. [ 30 ] Ms. M. continued to upgrade her education and worked intermittently at a bingo hall and at a gas bar as a cashier. In 2006, her step-mother was killed in a motor vehicle accident when Ms. M.’s boys were 14, 13 and 12 years old. Her step-mother was driving a family member to hospital for the delivery of her baby. Consequently, the baby died, her sister-in-law suffered a brain injury, and her brother who was involved with drugs and alcohol, “went off the rails”. In addition, her father was diagnosed with lung cancer at this time. Ms.

M.’s father died in September 2007, 9 months after the accident. Tyson had a close relationship with his maternal grandfather and step-grandmother. [ 31 ] Around this time, Devon was angry and acting out and he decided to move to Edmonton. Tyson also started showing signs of aggression. Subsequently, Tyson left home at the age of 14 years. (Devon had left when he was 12 years old and Clinton later left when he was almost 17 years old.) [ 32 ] Ms. M. met her current partner in 1999 and married him in 2007.

She also continued to pursue her education, eventually becoming a registered nurse. [ 33 ] Tyler was close to his cousin H., who lived with his family in High Prairie. His family was also involved in the drug trade, selling cocaine. Tyson, along with his girlfriend, ran away to stay with H.’s family at the age of 13. Tyson subsequently left to live with his biological father, Mr. Houle, his father’s new spouse, and his brother, Devon. The two boys were in their early teens and free to do what they wanted, with no rules and no school. Mr. Houle was selling drugs and, Ms. M. believes, encouraged the boys to do so.

Tyson had limited contact with Ms. M. during this period. [ 34 ] Ms. M. provided evidence of inter-generational addiction and inter-generational drug selling. Tyson, the eldest son, took on responsibility for his brothers, as their father did not provide for them. [ 35 ] Tyson was in a motor vehicle accident at the age of 17 years. A semi-trailer truck ran a red light and t-boned his car. He suffered nerve damage causing a lot of pain in his back and shoulders. Ms. M. testified that Tyson started to self-medicate to treat his pain, and that he became depressed when told he would never recover.

It was then he stopped keeping in touch with her. She wanted to get him to a pain clinic but there was a long waiting list. She believes that he has had a prescription drug problem since that time. He has told her of his plan to take treatment and change his life. [ 36 ] Ms. M. acknowledged that guns were part of Tyson’s home life. Her father always had multiple guns around and when he was drunk and became violent, he wanted his guns. [ 37 ] Devon also suffers from addiction. Clinton, the middle child, is the only one of the males in the family that has not been in the drug culture.

He suffers from severe anxiety and lives in a condemned house in the north end of Edmonton. He is a gamer; living in a world of virtual reality. His seclusion has deepened with Tyson in custody.

[ 38 ] When Tyson was first released in October 2012, he lived with his mother for 10 months. He lived under very strict conditions, not even allowed outside on the deck of the house. He attended NAADAC counselling at Sucker Creek First Nation until he was told he did not need to continue. [ 39 ] Ms. M. described that going into this Gladue process, she thought that her boys had a normal upbringing. However, talking about her life, she has come to realize the depth of the problems. She testified that her children have been through a lot.

In her words, she prays for Tyson to do something with his life, he is so much more than he thinks he is, he needs to see himself as he can be. He has always shown kindness and love to the family. And he is so smart. She believes he will turn his life around if he is given a chance. She believes in him.

(2) Clinton Willier [ 40 ] Clinton, Tyson’s 22 year-old brother, testified that he remembers a lot of yelling when he was young, as his father “wasn’t the greatest guy” when he was drunk. His father was constantly threatening to leave. After he did, the grandparents helped take care of them. It was fine when their grandfather was not drinking, but when drinking, he too was violent towards his wife and others. Clinton knows today that his grandfather was dealing drugs, but he did not understand it at the time. The year his grandparents died, Clinton was 12 or 13 years old.

He said these events were heartbreaking and that his mother broke down with the weight of it. He found he could lean on his brother Tyson as he was their father figure. It was after the death of the grandparents that his brothers left the reserve and he stayed behind. [ 41 ] Clinton attended high school in High Prairie. He was diagnosed with anxiety and panic disorder, depression and chemical imbalance. He found it hard to talk to people, became nauseous when he left the house and dizzy when driving. He testified that dark and suicidal thoughts clouded his judgment.

He left home when his brother Tyson was released from jail, as he was finally able to leave his mother’s basement. Tyson and Clinton got a house in Edmonton and lived together for a year and a half. When with his brother, he felt better; the panic attacks left him and he was able to leave their house. He credits Tyson with his not selling drugs. Tyson looked after the rent and meals. When Tyson went back to jail, Clinton started to drink heavily.

His liver then started to fail. [ 42 ] Clinton testified that now he and his brother Devon live in a decrepit house, living at a subsistence level, with Devon coming home high a lot. [ 43 ] Clinton also testified that his father is no longer selling drugs but lives on a disability income. He testified that in his view, his brothers got involved in selling drugs because it was all around them from an early age.

(3) Tanys Willier, Director, Sucker Creek First Nation Health Center [ 44 ] Tanys Willier is the Health Director at Sucker Creek First Nation. She does not believe she is related to Tyson’s family, although she may be so, distantly. She manages all the healthcare programs at Sucker Creek. She knows Tyson through his mother, whom she has known since junior high school. [ 45 ] When Tyson was released on bail, she received a letter that Tyson would be returning to the community on house arrest. The staff at the Centre transported him to the Health Centre for addictions counselling and health services.

Because Tyson has treaty status, the Sucker Creek First Nation can offer him treatment at a residential treatment facility. [ 46 ] There are a number of options for treatment. Kanai Lodge at Cardston has a 42-day program. Northwind at Fort St. John has a suitable residential treatment facility. There is also a facility in Calgary run by Social Services with residential care programs for up to a year. To access the residential treatment facilities, Tyson would have to return to the community for 2 weeks, and have 4 to 10 counselling sessions there.

Once he engages the intake process at Sucker Creek, he can apply for medical transportation to get to the programming. If Tyson accesses programming through the community, First Nations funding through the federal government is available; if not, he must obtain Alberta government funding. Tanys Willier says it is sometimes quicker to obtain access to residential treatment while on reserve as her service can advocate for what he needs. [ 47 ] Once Tyson has completed residential treatment, there are funding options available for post-secondary education.

For upgrading to commence in September, he would have to start the application process this spring. [ 48 ] Tyson is also eligible for psychological counselling as his family members include residential school survivors. [ 49 ] Supervision is available at Sucker Creek, as a probation officer comes from High Prairie to the community.

(4) Leslie Block, MA [ 50 ] Mr. Block was qualified to give expert evidence as a forensic and clinical psychologist with emphasis on aboriginal mental health, including social context and systemic problems in which mental health issues arise. The Crown did not dispute his qualifications to give expert evidence. [ 51 ] Mr. Block has been in private practice as a clinical and forensic psychologist for 29 years. He has been qualified as an expert over 190 times in court settings in Alberta, including Court of Queen’s Bench, Provincial Court, and police, military, and immigration tribunals. [ 52 ] Mr.

Block has a special interest in Native mental health, having provided services on reserves and in clinical settings, as well as in penitentiaries for men and women. He regularly conducts evaluations for courts in criminal matters, specializing in the issues that arise in Gladue evaluations. His therapeutic practice focusses on traumatic stress and related sequelae , including the inter-generational transmission of abuse and trauma. He has worked extensively with Cree elders, ensuring delivery of cultural-specific, safe psychological practices.

[ 53 ] Mr. Block undertook the preparation of a Gladue report with clinical interviews of Tyson, psychological testing, interviews of his mother, and a review of documents. [ 54 ] Mr. Block confirmed that Tyson provided information consistent with what his mother provided. Though Tyson may have been under the influence of OxyContin when he was interviewed, he displayed no obvious signs of intoxication. [ 55 ] The interview with Tyson’s mother, as related in the Gladue report, contains the details she provided in evidence. She told Mr.

Block, as she related in her evidence, that Tyson began to act out in adolescence, and though she tried to get help from Children’s Services and the police, she found none. He moved in with his maternal grandfather, the “safest option” at the time, but as noted above, his grandfather smoked marijuana, sold drugs, and had angry outbursts. Both these surrogate parents died when Tyson was between the ages of 13 and 15 years old. At the age of 14 years, he went to live with his father, and was on his own, without parenting.

He took care of his younger siblings and fell into a life of criminality. [ 56 ] From his interview with Tyson, Mr. Block relates that Tyson was an honour student from grade one to grade eight when he lost interest in school. After leaving home, he had a number of jobs: newspaper stuffer, dishwasher, concrete worker, car detailer, truck jockey. He owned a legitimate tattoo parlor from 2014, purchased with the damage proceeds from the motor vehicle accident, until his bail was revoked. [ 57 ] Mr.

Block also writes that Tyson has health problems from the motor vehicle accident that occurred when he was 17 years old. He has hypertension, headaches, and has self- medicated with OxyContin, taken for pain. He has emotional problems including anger, low self-esteem, and depression. He also has sleep problems, and at times, he has been self-destructive. Tyson began drinking at the age of twelve and was a habitual drinker by the age of 17 years. By the time he moved to Edmonton he was smoking marijuana and drinking daily, though after the accident he was taking Tylenol #3 and then OxyContin.

He was using Percocet/OxyContin until confined at the Edmonton Remand Center. He was a chronic heavy user of those drugs. They cost up to $5,000 per month. He also advised Mr. Block that he had a severe gambling problem. [ 58 ] According to Mr. Block, Tyson’s friends are also involved in a criminal lifestyle and there is some suggestion of gang activity. He used the money obtained from crime to support his family and his lifestyle. [ 59 ] Tyson has been minimally involved in Aboriginal cultural activities, though he is Cree and registered as a member of the Sucker Creek First Nation. [ 60 ] Mr.

Block assessed Tyson’s psychological functioning from observation and extensive testing. Mr. Block made recommendations, including these: Treatment Considerations : Successful treatment can help reduce the risk and problems this man poses if he chooses to live in a prosocial manner. Reducing risk can be accomplished by treating the substance abuse issues concurrently with the mental health problems (e.g., depression, anxiety, interpersonal) and situational variables (employment and education, choice of associates, attitudes).

He will need assistance in academic upgrading in order to improve his chances at securing suitable employment. ... Wellness and recovery should involve ongoing and continuous supervision to ensure compliance with all facets of the treatment plan. He requires formal treatment for substance abuse, with extensive aftercare programming. He may benefit from AA or NA groups and enlist a formal sponsor. He also requires psychological treatment for mental conditions such as depression, anxiety, and trauma related problems. … He will need eventually to engage in constructive activities … Mr.

Willier appears ambivalent about his culture; however, it may be prudent to have an Elder oversee his rehabilitation program. In this manner, traditional approaches could be incorporated into the mainstream efforts. … Based on static risk factors, his overall risk appears Low but this is offset by the dynamic criminogenic factors noted above. The sum of these factors places him closer to the Medium level of risk for recidivism. If these dynamic factors can be resolved, his risk will likely be more manageable in the community, particularly if his substance use problem can be resolved. Formulations/Conclusions ...

Mr. Willier’s current risk for recidivism takes the Ewert decision (2015) into account. … … It appears likely that his criminal behaviour and substance abuse are largely a result of his difficult life circumstances. Substance usage has offset his ability to maintain social role expectations. … Mr. Willier is a treaty status Indian under the Indian Act. As such, he is entitled to a wide range of programs and services offered by federal agencies and provincial governments.

In my opinion, with appropriate support and programming, he should be able to secure a prosocial niche in society whereby he can refrain from further criminal behaviour. For this to occur, Mr. Willier will need to make a choice about his life, followed by a concerted effort to change his ways. …

He has antisocial tendencies that could make programs of wellness challenging for him and his instructors. He is often angry but only able to express his anger when disinhibited by substance usage. This problem area will necessitate considerable effort to change these destructive patterns. Individual and group therapy should assist him in addressing these destructive defenses. Mr. Willier will require ongoing dynamic (face to face) supervision for an extended period of time in the community (at least three years). Mr. Willier should also be reassessed psychologically in 1 ½ to 2 years time.

He should remain accountable to and report to the Court on his progress, over time. Although Mr. Willier may have to serve further prison time, it is my opinion that this will do little to deter future criminal offending. It could also have the unintended effect of enhancing his criminal identity and reinforce his antisocial attitudes. For a multi-dimensional wellness program to be successful, he needs to take responsibility for his role, agree to remain drug/alcohol free, and communicate his needs with support workers assigned to his case. He should be required to sign a contract in this regard.

In my opinion, if he can work through these issues and receive the support he requires, the prognosis for future adjustment seems attainable. III. Issue [ 61 ] For this offence, committed by this offender, harming these victims, in this community, what is the appropriate sanction under the Criminal Code ? (See Gladue at para 80.) IV. Legislation [ 62 ] The sentencing provisions in the Criminal Code of Canada, RSC, 1985, c C-46, at the time of these offences stated: 718 .

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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 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, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence 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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. V. Analysis

A. Gladue Approach [63] The Supreme Court of Canada issued the Gladue decision seventeen years ago. The Court considered and interpreted s718.2(

e) of the Criminal Code, part of a new sentencing regime that codified sentencing principles and encouraged judges to consider allavailable sanctions other than imprisonment that are reasonable in the circumstances, “... with particular attention to the circumstances ofaboriginal offenders”. (See also Gladue at paras 1, 37, 93 ). [64] In this thoughtful and far-ranging decision the Court noted, at para 32, that these sentencing provisions, including s 718.2(e),are remedial in nature and to be given a fair, large and liberal

interpretation in order to attain their remedial objective. [65] The Court stated, at para 64 , that s 718.2(

e) is intended to attempt to redress the “dramatic overrepresentation ofaboriginal peoples” in jail and in the criminal justice system. It is a direction to the judiciary: 64 These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures arestark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginalpeoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.

It isreasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended toattempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of thejudiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through thesentencing process. [66] The Court recognized, at para 65 , that the disproportional representation of aboriginal offenders in the prison systemis the result of systemic factors: 65 It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem ofaboriginal alienation from the criminal justice system.

The unbalanced ratio of imprisonment for aboriginal offenders flows from anumber of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginalpeople. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refusebail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot beaddressed in these reasons.

What can and must be addressed, though, is the limited role that sentencing judges will play in remedyinginjustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence thetreatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, orwhether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to theoffender, victim, and community, and in preventing future crime. [67] However, sentencing and appeal courts did not take up this challenge or comply with these directions, an observation made bythe decision of the Supreme Court of Canada when it re-visited the question in Ipeelee, at para 75: 75 ...

Canadian Courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencingprocess.

Section 718.2(

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful toAboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process. [68] Some sentencing judges did undertake the Gladue approach so as to impose non-custodial sentences for worthy Aboriginalcandidates. An example is R v Wilson, 2008 ABQB 588, where the sentencing judge found hopeful and promising circumstances for aconditional sentence order where the offender had been convicted for the possession of a large amount of cocaine for the purposes oftrafficking.

A senior and very experienced judge, she found that a sentence of 3.5 years would normally be appropriate, but instead,decided that the Gladue factors called for a penalty of 2 years less a day. She considered Mr. Wilson’s circumstances and found that thepre-conditions for imposition of a conditional sentence order were met. Further, she imposed two years of probation to assist with theprocess of rehabilitation. The sentence thus involved a judicial commitment to oversee the sentence imposed upon Mr. Wilson.

It was asentence tailored to re-enforce wellness and his Aboriginal heritage. [69] That sentence was overturned by the Court of Appeal (2013 ABCA 149). Though the Court was aware that the sentence was“…reached after great judicial labour…”, it found a series of errors in the judge’s considerations and chose to “… substitute a sentence of3 and one half years’ actual jail” (at para 43). [70] In Ipeelee, the Court observed that though a decade had passed since the Gladue decision, the data revealed that s 718.2(

e) didnot have a discernible impact on the over-representation of Aboriginal people in the criminal justice system. The Court stated, at para 63,that there was some indication from both academic commentary and jurisprudence that this failure can be attributed to some extent to afundamental misunderstanding and misapplication of both s 718.2(

e) and the Gladue decision. In Ipeelee, the Court proceeded to try toresolve these misunderstandings and provide further guidance. B.

Misunderstandings of the Gladue Approach [71] The Supreme Court, in Ipeelee at paras 64-79, addressed and countered the criticisms that had been levelled at the Gladueapproach, criticisms that sentencing is not an appropriate means of addressing overrepresentation of Aboriginal offenders in prisons, thatthe Gladue principles provide a race-based discount for Aboriginal offenders, and that the Gladue approach offends the parity principle,whereby similarly situated offenders are to be treated in a similar fashion. [72] The Court in Ipeelee, at para 72, restated the methodology commended in Gladue: 72 … The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offenderwhich could reasonably and justifiably impact on the sentence imposed.

Gladue directs sentencing judges to consider: (1) the unique

systemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2) 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. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.

(1) Unique Systemic and Background Factors [ 73 ] Systemic and background factors may shed light on the moral blameworthiness of the offender. The Ipeelee decision, including at para 73, explains how this is so. Criminal liability in Canadian law in based on voluntary conduct. Aboriginal offenders often grow up in circumstances of severe disadvantage, surrounded by violence, addiction, and poverty. Aboriginal offenders cannot be viewed as having the true freedom to make choices as others who grow up without such systemic disadvantage.

The Court notes that while such factors rarely, if ever, negate voluntariness so as to exempt criminal sanction “... the reality is that their constrained circumstances may diminish their moral culpability” (at para 73). There is a connection between crime and historic, intergenerational disadvantage: it yields harm to each individual that limits their ability to freely choose a life of dignity and worth; and when poor choices result in crime and punishment, moral culpability is diminished.

This examination then bears upon the sentencing principle that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender .

(2) Procedures and Sanctions Appropriate to Aboriginal Offenders [ 74 ] The second set of circumstances a sentencing judge must consider is the type of sanctions that may be appropriate ( Ipeelee , at para 74 ).

In commending a creative, innovative approach to sentencing Aboriginal offenders, the Court recognized the Gladue reasoning 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.” [ 75 ] At para 66 of Ipeelee , the Court approved the observations of Professors Rudin and Roach that innovative sentencing can assist a person to take responsibility for their actions and so, can lead to a reduced recidivism. [ 76 ] In Ipeelee , at paras 81-82 , the Court specifically responded to the Alberta Court of Appeal for its requirement of a causal link between background factors and the offence before the Court: 81 First, some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.

The decision of the Alberta Court of Appeal in R. v. Poucette , 1999 ABCA 305 , 250 A.R. 55, provides one example. In that case, the court concluded, at para. 14: It is not clear how Poucette, a 19 year old, may have been affected by the historical policies of assimilation, colonialism, residential schools and religious persecution that were mentioned by the sentencing judge. While it may be argued that all aboriginal persons have been affected by systemic and background factors, Gladue requires that their influences be traced to the particular offender.

Failure to link the two is an error in principle. (See also R . v. Gladue , 1999 ABCA 279 , 46 M.V.R. (3d) 183; R. v. Andres , 2002 SKCA 98 , 223 Sask. R. 121.) 82 This judgment displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples. It also imposes an evidentiary burden on offenders that was not intended by Gladue . As the Ontario Court of Appeal states in R. v.

Collins , 2011 ONCA 182 , 277 O.A.C. 88, at paras. 32-33 : There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence.... 83 As the Ontario Court of Appeal goes on to note in Collins , it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex.

The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated [Emphasis added] [ 77 ] Crown counsel also referred to the decisions of the Alberta Court of Appeal in R v Popowich , 2013 ABCA 149 , and R v Holloway , 2014 ABCA 87 , leave to appeal to SCC refused, 36131 (January 22, 2015). [ 78 ] In the Popowich case, the accused and two others were convicted of break and enter into a dwelling house, aggravated assault, carrying a weapon for a dangerous purpose and being disguised with the intent to commit an indictable offence.

There had been a home invasion where one of the victims suffered permanent nerve damage to his back as a result of a stab wound. At the time of the offence, Mr. Popowich was 20 years of age; he was of Aboriginal heritage, and had completed an apprenticeship program in carpentry. The Crown sought a sentence of between six and nine years' incarceration whereas the accused sought a sentence of three years with credit for time served, for a net sentence of two years less one day. The sentencing judge found the offence was violent, serious and planned.

She considered the accused's Aboriginal status and took into account the principles of deterrence, denunciation and rehabilitation. She sentenced the accused to 37 months' incarceration, less credit of 13 months for pre-trial custody, plus probation. [ 79 ] The Crown appealed the sentence on the basis it was unfit because the sentencing judge overemphasized the principle of rehabilitation at the expense of deterrence and denunciation, failed to properly consider the aggravating factors, and misapplied the

Gladue principles, calling for a sentence in the range of five to eight years.

The majority of the Court of Appeal found that the sentencingjudge had not properly weighed the sentencing principles and substituted a sentence of five years' incarceration. [80] Despite the admonitions of the Supreme Court of Canada in Ipeelee referred to above, in Popowich, the Alberta Court ofAppeal still faulted the sentencing judge for failing to discuss (or demonstrate) a “relationship” between the Aboriginal heritage of theoffender and the offence, commenting at para 24: 24 While an offender does not have to prove a causal link between his aboriginal status and the particular offence, some relevancemust be shown.

There is no sentence discount merely for being aboriginal. The sentencing judge held only that he "grew up as aninheritor of the legacy of the residential schools of this country". This reflects an error in principle, as it appears to apply an automaticdiscount because of the experiences of his ancestors. The sentencing judge never discussed how the respondent's aboriginal heritage hadany relationship to this offence. Indeed, because the respondent never explained why he and his accomplices attended on these premisesto stab the complainant, it would likely have been impossible to draw that conclusion.

Again, the onus of proving this potentiallymitigating circumstance was on the respondent. [Emphasis added] [81] In a spirited dissent, Berger JA notes that the sentencing judge found there was a “connection between [the respondent’s]aboriginal background and the circumstances that he finds himself in now” (at para 37). [82] In reviewing these sentencing decisions, and, though the oral reasons of the sentencing judge in Popowich are not published,bearing in mind the lack of judicial resources and the frequency with which we are called upon to sentence Aboriginal offenders, it mustbe recognized that it is often difficult to provide the elaborate reasons that these cases deserve.

As in the Wilson and Popowich cases,often sentencing judges attempt to meet the goals of the Criminal Code and jurisprudence from the Supreme Court of Canada, to theextent that circumstances permit. [83] In the 2014 Holloway case, the Court of Appeal was asked to review the sentence of eight years imposed on an Aboriginaloffender convicted of manslaughter during a home invasion. The evidence showed that Mr. Holloway was “...seized since age 12 byalcohol” and had suffered a “long history of passing out, blackouts, loss of memory due to his alcohol consumption”.

As well,psychological testing placed him “within the borderline range of cognitive ability with a low comprehension level, at an educationallevel of about Grade 5.” Further, “he had limited insight into the extent of his problems but according to counsel had recently turned toface his demons” (at para 40).

The Court also noted that he “… felt hurt and sorrow for what he did but he could not figure out what tosay to the family of the victim” (at para 40). [84] In affirming the decision of the sentencing judge, the majority of the Court held that Gladue required information about theindividual offender to assess the gravity of the offence and the circumstances of its commission as well as the degree of responsibility ofthe offender; and information about the sentencing options which might be available.

The Court found there was nothing in the record toassist with these lines of inquiry, that although an offender does not bear a specific burden of establishing a direct causal link to theoffence, nothing in s 718.2(

e) of the Criminal Code suggests that there should be a discount from a proportional sentence automaticallybecause the offender is an Aboriginal person. The observation by the sentencing judge that the offender was a substance abuser since age12 was a mitigating factor in the sentence that was sufficient to dispose of the appeal (see para 43). [85] Berger JA, in dissent, would have allowed the appeal.

He observed that the sentencing judge “... gave little or no weight to theAppellant’s Aboriginal heritage and experience, nor to his diminished intellectual capacity” In his view, appellate intervention waswarranted on those grounds alone. [86] The theme that there must be a causal nexus between historical systemic disadvantage and the events before the Court wastaken up again in R v Quinn, 2015 ABCA 250. In Quinn, an aboriginal offender committed a violent home invasion. The sentencingjudge imposed a term of five years, challenged by the offender on appeal.

The majority of the Court held that the sentence could havebeen more severe, and dismissed the appeal. In dissent, Bielby JA held that a fit and proper sentence would be a term of four years’imprisonment. At paras 44-53, she reviewed the evidence of Gladue circumstances, including Fetal Alcohol Spectrum Disorder, a familyhistory of addiction, abuse and residential school attendance.

At para 50, she found the evidence did suggest a link between thecommission of these crimes and the Aboriginal ancestry. [87] On the other hand, Watson, JA, wrote for the majority, at para 18: 18 More directly as to the appellant as an individual, there is no indication of a pattern of behaviour which can be attributable to theongoing effects of physical or emotional deprivation and abuse or the effects of cultural suppression or dislocation or the effects ofFASD or brain injury, even though the appellant asserts that he had suffered head trauma.

The sentencing judge did not err in finding nonexus between such factors and the appellant's crimes. [88] The Quinn decision is difficult to square with the Ipeelee decision, especially paras 81 to 82, where, as noted above, theGladue approach taken by a panel of the Alberta Court of Appeal was specifically disapproved as erroneous in suggesting “that anoffender must establish a causal link between background factors and the commission of the current offence before being entitled to havethose matters considered by the sentencing judge”.

It would be extremely difficult for an Aboriginal offender to ever establish a directcausal link between his circumstances and his offending as “the interconnections are simply too complex” (Ipeelee at para 83). [89] Though I do not aspire to capture the thoroughly reasoned decisions in Gladue and Ipeelee, a reminder of the centralprinciples is useful in considering how to take into account the broad context of sentencing Aboriginal offenders as well as the uniquecircumstances of individual offenders, as we are required to do when sentencing:

(1) The sentencing provisions in the Criminal Code, including s 718.2(e), are remedial in nature, meant to be given a fair, large andliberal

interpretation (Gladue, paras 32 and 93 ), and call for the use of all available sanctions other than imprisonment,particularly for Aboriginal offenders.

(2) Section 718 of the Criminal Code should be viewed as a restatement of sentencing principles at paras (

a) through (d), but asventuring into a new area in paras (

e) and (f), which along with para (d), focus upon the restorative goals of repairing the harms sufferedby individual victims and by the community, promoting a sense of responsibility, and acknowledging the harm caused on the part of theoffender, as well as attempting to rehabilitate or heal the offender. The concept of restorative justice involves restitution and reintegrationinto the community, and the need for offenders to take responsibility for their actions. Restorative sentencing goals do not usuallycorrelate with the use of prison as a sanction (Gladue, para 43 ).

(3) The sentencing provisions are intended to address and remediate the over-incarceration of Aboriginal offenders in Canadianprisons (Gladue, para 64 ).

(4) Sentencing judges must undertake the sentencing of Aboriginal offenders individually, but also differently, because thecircumstances of Aboriginal people are unique. In sentencing an Aboriginal offender, the judge must consider: (

a) The unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender beforethe courts; and (

b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of hisor her particular Aboriginal heritage or connection. (Gladue, paras 66 and 93 )

(5) Upon the application of Gladue principles, “... [I]n some circumstances the length of the sentence of an aboriginal offender maybe less and in others the same as that of any other offender...” for the same offence (Gladue, at paras 79 and 93 ).

(6) Sentencing judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally,as well as additional case-specific information provided through the Gladue report (Ipeelee, paras 59 and 60). The sentencing court must“take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues totranslate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and ofcourse higher levels of incarceration for Aboriginal peoples” (Ipeelee, para 60).

These matters “...provide the necessary context forunderstanding and evaluating the case-specific information presented by counsel” (Ipeelee, para 60). It is counsel’s duty to do so inevery case unless the offender expressly waives his right to have it considered.

(7) The offender need not show a causal link between background factors and the commission of the current offence before beingentitled to have those matters considered by the sentencing judge (Ipeelee, para 81).

(8) Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on moralblameworthiness. When one is born into abject poverty, addiction, abuse, and consequently has trouble conforming to social norms,criminality may not be a choice so as to merit the same level of moral blameworthiness that might otherwise be the case. Where thesefactors exist, the sentencing judge must consider them in fashioning an appropriate, individualized sentence (Ipeelee, paras 72-73).

(9) Sentencing judges must apply Gladue principles in all cases of sentencing Aboriginal offenders; no exception has been carvedout for “serious” offences (Ipeelee, paras 85-86).

(10) After considering the history, systemic factors that may have played a

part in bringing the Aboriginal offender before the Courts,and the individual circumstances of the offender, it is necessary to fashion a fit and proper sentence appropriate to the uniquecircumstances of this Aboriginal offender. The sentencing objectives of deterrence and rehabilitation can be simultaneously met byfashioning a creative sentence (Ipeelee, para 66).

Despite the constraints of proportionality, sentencing judges are meant to “enjoy abroad discretion” in the sentencing process (Ipeelee, para 38). [90] Considering the unique sentencing considerations for Aboriginal offenders, some appellate courts have imposed lowersentences than would otherwise be fitting on the basis of s 718.2(

e) of the Criminal Code and the Gladue imperative. In R v Brizard, (Ont CA), the Ontario Court of Appeal reduced the sentence for an Aboriginal offender convicted of manslaughterfrom 8 years to 15 months with 12 months’ probation. Because of the credit of three years and nine months for pre-sentence custody, theeffective sentence was five years imprisonment.

In R v Vermette, 2001 MBCA 64, the Manitoba Court of Appeal reduced the sentencefor one out of four offenders convicted of conspiracy to traffic in cocaine to four years 10 months, less time served, because thisAboriginal offender had a lower degree of involvement, he had no prior drug convictions, and he had a proposed rehabilitation plan. In Rv Jacko, 2010 ONCA 452, the Ontario Court of Appeal considered appeals of four-year sentences for various offences committingduring a home invasion on reserve, including, in Mr. Jacko’s case, the conviction for robbery with an offensive weapon.

The Courtreduced the sentence of Mr. Jacko to a conditional sentence, and that of his co-accused to two years less a day, in recognition of theirAboriginal heritage, restorative justice principles, and Mr.

Jacko’s rehabilitation plan. [91] In R v Eustache, 2014 BCCA 337, the British Columbia Court of Appeal discussed the role of Gladue factors in sentencing(at para 13): 13 While, as reflected in Ipeelee, the Gladue factors are "mitigating in nature", it is also true that they are not "traditional" mitigatingfactors, such as the lack of a criminal record, a guilty plea, a good work history, or the countless other circumstances personal to anoffender that may operate to moderate the nature and severity of a sentence.

Gladue factors are unique in that they require a sentencingjudge to consider the systemic and intergenerational effects of the collective experiences of Aboriginal peoples. As noted in Ipeelee atpara. 82, there is no burden on an Aboriginal offender to establish a causal link between those factors and the commission of the offence. C. For these offences, committed by this offender, harming these victims, in thiscommunity, what is the appropriate sanction under the Criminal Code?

(1) Range of comparable sentences (

a) The Crown [92] In this case, the Crown argues that a sentence in the 5 to 6 year range is a fit and proper sentence, but the totality principle andmitigating factors suggest a sentence in the range of 3.5 years to 4.5 years, together with ancillary orders.

From this sentence would bededucted credit at a rate of 1.5 times the period of time served. [93] The Crown submits the following breakdown: Counts 15 and 16 – possession of cocaine and oxycodone: 3 to 4.5 years Count 17 – proceeds of crime: 3 months Counts 18 and 19 – breach of recognizance: 3 to 6 months; concurrent Count 7 (s 95); Counts 2, 9 (s 88(1)); Count 4 (86(1)) – gun charges: 3 years on count #7; less on the others; concurrent Count 26 – obstruction: 1-3 months [94] The Crown relies on the following authorities: R v Aubichon, 2015 ABCA 242; R v Nur, 2015 SCC 15; R v Yalahow, 2015ABCA 116; R v Leung, 2012 ABPC 158; Ipeelee; Gladue; R v Chalifoux, 2010 ABCA 237; R v Marchesi, 2009 ABCA 304; R v Chin,2009 ABCA 226; R v Lau, 2004 ABCA 408; R v Rahime, 2001 ABCA 203; R v Ferguson (1996), 1996 ABCA 189 , 184 AR157, 1996 CarswellAlta 416 (Alta CA); R v Maskill (1981), 29 AR 107, 1981 ABCA 50 (Alta CA); and R v Rider, 2013MBQB 116, among others. [95] As noted, the Crown also relied upon the decisions of Wilson, Popowich, and Holloway concerning the Gladue questions. [96] In confirming a sentence of 7.5 years, the Aubichon case appears to be at the high end of the range of sentences in casesinvolving drugs and guns.

It must be noted that Aubichon was decided prior to Nur (which struck down the gun mandatory minimums).Also, it was decided without a Gladue analysis, despite the suggestion in Ipeelee that it is an error to proceed without one (at paras 60and 87). [97] In Nur, the non-Aboriginal, youthful offender carried a loaded gun in circumstances that could have led to violence; hissentence of 40 months less 2 to 1 credit for time served was upheld by the Supreme Court of Canada. [98] The sentencing judge in Yalahow imposed the sentence for four offences, including possession of a loaded, restricted firearmand 15 grams of cocaine, to 5 ½ years due to the principle of totality.

The Court of Appeal stated that the sentencing judge was correct inidentifying denunciation and deterrence as the primary considerations in sentencing for crimes that involve dangerous and highlyprofitable premeditated crime of trafficking in hard drugs along with the inherently dangerous conduct of being in possession of a loadedfirearm. [99] The rest of cases, Leung, Chalifoux, Marchesi, Chin, involve fact scenarios of possession for the purposes of trafficking indrugs. Maskill and Rahime confirm the starting point at three years for trafficking in cocaine to satisfy the elements of denunciation anddeterrence.

Some of the cases, such as those in the Rahime series, consider mitigating personal factors, though none deal with Aboriginaloffenders with backgrounds of systemic disadvantage and the effect of Gladue factors. [100] In my view, the Crown’s assessment of the range of sentences appropriate to the range of offences now before the Court is fair,but in my view, does not adequately reflect in the Gladue factors at play in this case. (

b) The Defence [101] Bearing in mind that Tyson is a youthful first offender, there was no violence, and he pleaded guilty early in the court process,counsel for Tyson argues that three years for the gun charges and two to two and one half years for the drug charges is appropriate,before deduction of credit for time served and before the consideration of mitigating Gladue factors. Because the convictions arise froma single transaction, counsel submits that the sentences should be served concurrently.

She argues for a period of probation with strictterms so that Tyson can continue with his recovery under the supervision of this Court. Though Tyson’s bail was revoked because offurther charges – which did not result in convictions – Tyson has shown he is capable of following terms while on judicial interimrelease. [102] Defence counsel has advocated a comprehensive plan prepared by Ms.

Tanys Willier, Director of the Health Center at SuckerCreek, for Tyson to attend residential treatment under the auspices of the Center serving as a navigator to access treaty rights that supportboth treatment programs and counselling. This plan includes addictions recovery to treat Tyson’s addiction to prescription drugs, andupon successful release from addictions programming, follow-up monitored by the Center. Tyson would then have access to educationalopportunities as a result of his treaty status.

He would pursue his education, meanwhile, committing to a life that is pro-social. [103] In making her submissions, defence counsel relied on cases taking the Gladue approach to sentencing, including Gladue;Ipeelee; R v Skani, 2002 ABQB 1097; and R v Small-Buffalo, 2009 ABQB 353, as well as others.

(2) Aggravating Factors [104] Tyson’s convictions are for activities, to quote Yalahow, that are “dangerous and highly profitable” and premeditated, includingpossession for the purposes of “trafficking in hard drugs along with the inherently dangerous conduct of being in possession of firearms

and ammunition” (at para 8). These crimes cause great harm to the community, particularly to young people, and to vulnerable people,including members of Tyson’s own Aboriginal community, both urban and on reserve. Any sentence for such offences must take intoaccount the sentencing principles of deterrence and denunciation, and I do.

(3) Mitigating Factors (

a) Guilty Plea [105] A guilty plea not only is an indicator of remorse, it is recognized as a mitigating factor by itself: R v Sandercock (1985), 62 AR382, 1985 ABCA 218 (Alta CA); R v Bruha 2003 NWTSC 41. Tyson entered pleas of guilty, accepting responsibility for hiscrimes and as a result, saved the administration of justice significant time and expense. (

b) Youthful First Offender [106] The only conviction on Tyson’s criminal record, dated March 12, 2012, is for impaired driving. Tyson is a youthful offender at23 years of age and can be considered a first time offender. (

c) Remorse [107] Tyson expressed remorse for his actions; he apologized. At the end of the Gladue hearing, he observed that seeing his actionsfrom the viewpoint of others has changed the way he sees his own actions. He said what he was doing – casually carrying drugs and gunsin public – was normal for him. Until now, he did not think of the threat to the public or how it is scary to members of the public for himto do this. He thought only of protecting himself. I accept that his remorse is genuine. (

d) Gladue Analysis (

i) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts. [108] Tyson is from a family that is the inheritor of colonialism and the Aboriginal school legacy. His maternal grandparents areresidential school survivors and both became addicted to alcohol, and in his grandfather’s case, marijuana. The connection between suchexperiences and such addictions in the Aboriginal community is now a matter of public record and properly may be the subject ofjudicial notice.

In addition, Tyson’s maternal grandfather, who participated in his upbringing, was involved in the drug trade on reserve.He was violent towards his wife and others and kept guns in his home. [109] Tyson’s father was addicted to alcohol and he too was violent towards Tyson’s mother, in his presence. Tyson’s mother, in turn,left home at the age of twelve years old and was homeless, without any means of support other than what could be gleaned from thestreets, without guidance or protection, and surrounded by people involved in antisocial activities. She was 15 years old when Tyson wasborn.

They lived an itinerant lifestyle until they settled near her father’s home in Sucker Creek. After a violent incident in the home,Tyson’s mother, Ms. M., insisted that Tyson’s father leave. Tyson’s father earned his living in Edmonton in the drug trade. [110] Tyson grew up in the drug culture inhabited by both father figures in his life both on and off reserve and learned to make hisliving in that way.

It is obvious to trace the origins of the addiction, violence, and antisocial activities in Tyson’s immediate family, sincethe factors of which we take judicial notice – colonialism, the legacy of residential schools, addiction, poverty, violence – all exist in thiscase. It is also obvious to draw the nexus between the drug trafficking as way of life in Tyson’s immediate family and his falling into thesame patterns of criminality.

I find that all of these factors, both historic, systemic, and those unique and specific to him, havecontributed to Tyson’s predicament before the Court today. [111] These systemic and background factors, as prescribed by Ipeelee, shed light on the culpability or moral blameworthiness of thisoffender. Tyson was born into poverty, addiction, violence, and criminality. It is not a surprising consequence that he has troubleconforming to social norms. Criminality was not a choice so as to merit the same level of moral blameworthiness that might otherwise bethe case.

This was not a choice as other young people might face: which University or technical school to attend, or what career topursue, or where to live or with whom to associate. The moral culpability evidenced here is not the same as that of a youth withprivileged, middle class, or working class origins, who sometimes make calculated or mercenary choices to be involved in the drug tradeon a commercial level.

Since these systemic and individual factors have shaped the offender and explain (though do not excuse) hisbehaviour, I must consider them in fashioning an appropriate, individualized sentence. (ii) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particularAboriginal heritage or connection. [112] The range of sentences proposed by the Crown, 3.5 years to 4.5 years after credit for mitigating factors, is a fair submission,given the range of sentences revealed in the cases.

However, in my view, this case calls for a sentence that gives maximum credit formitigating factors. In this unique case, the mitigating factors are extensive. There was a guilty plea, the expression of remorse and adesire to seek rehabilitation. Tyson is a youthful first offender who became addicted to prescription medication as a result of injury. Thesystemic and individual Gladue factors include familial addiction, violence, attendance at residential schools, poor education, lack oflegitimate employment, and exposure to the drug trafficking lifestyle.

This combination of systemic and individual factors leadirresistibly to the conclusion that the level of moral culpability attributable to Tyson is reduced compared to most offenders charged withsimilar crimes, as shown in the case law. [113] I have considered and accepted the report prepared by the Gladue expert, Mr. Block. I appreciate that Tyson is at risk ofrecidivism, which may be at a medium level, bearing in mind the test employed has been said to be culturally biased.

I accept Mr.Block’s conclusion that successful treatment can help reduce the risks and the problems for society that Tyson poses, if he chooses to

live in a pro-social manner. As Mr. Block says, reducing risk can be accomplished by treating substance abuse issues concurrently with mental health problems (depression, anxiety, inter personal and situational variables); and by opportunity for meaningful employment and education, as well as choices of associates. Wellness and recovery must involve on-going and continuous supervision to ensure compliance with all facets of the treatment plan. [ 114 ] As Mr. Bock has concluded, Tyson requires formal treatment for substance abuse with extensive after-care programming.

He requires treatment for his mental conditions including depression, anxiety and trauma-related problems. He will need to engage in constructive activities. The community, as represented by the Health Center and Ms. Willier, may consider having an Elder mentor him in the community of Sucker Creek. This will ultimately be up to him, as at this time in his personal history, he will be making true choices. [ 115 ] A formal treatment plan has been proposed by Ms. Willier, the Health Director at Sucker Creek First Nation. This plan involves four steps. At step 1, Mr.

Willier will return to Sucker Creek for about two weeks to one month for the intake process with the NNADAP worker. She will meet regularly with him until his bed is available in one of the treatment facilities identified in the plan, at Cardston, Alberta or in Fort St. John, BC.

The Health Center will facilitate his transport to High Prairie to complete the medical pre-conditions. [ 116 ] Step 2 will be medical transportation to the treatment facility upon the approval from Health Canada and placement in that facility. [ 117 ] Step 3 will be follow-up between the NNADAP worker at Sucker Creek and the treatment facility to monitor progress, and to assist with gathering the necessary support for transition into a residential facility in Calgary for after-care that may extend to a period of up to one year.

Applications to Social Services will be completed to secure funding to the extent it is not provided by Health Canada. The Health Center at Sucker Creek undertakes to monitor sobriety and compliance, and to report to the assigned probation officer. [ 118 ] Step 4 involves further follow up after the first year of treatment. The community will continue to be involved to assist Tyson to find a mentor and to acquire the tools to maintain a healthy lifestyle. The Health Center will assist Tyson to make the funding applications to commence post-secondary education.

The Center will attempt to find mentors for him as he completes his treatment. VI. Conclusion A.

Sentence [ 119 ] In my view, a global sentence of three years for the gun offences (counts 2, 4, 7, 9, 11, and 13), two years for the drug offences (counts 15 and 16), three months for the proceeds of crime (count 17), and three months for breach of recognizance and obstruction (counts 18, 19 and 26) to be served concurrently, together with a period of probation for two years, is a fit sentence, proportional to the gravity of the offence and the degree of moral responsibility of the offender. [ 120 ] Defence and Crown counsel agree that Tyson has served 356 days and that he should receive credit at the rate of time and one half, for a total credit of 534 days against any sentence imposed.

This leaves about 18 months to be served, the precise amount of time to be determined by corrections authorities. [ 121 ] Upon expiration of his prison term, the two years’ probation will include the following in addition to statutory terms: Tyson will report to the Health Center at Sucker Creek within two days of his release from custody. He will engage in the treatment plan prepared by Ms. Willier, Health Director of the Sucker Creek First Nation, as described by her and set out above.

Upon completion of residential treatment, Tyson will maintain employment or be enrolled in full-time education to complete his qualifications for post-secondary education. He will follow the directions of his probation supervisor, as well as those of Ms. Willier and her staff at the Health Center. While he is on probation, his progress will be reviewed by this Court after he has completed 12 months and after he has completed 23 months of the probation order. B. Ancillary Orders [ 122 ] The various ancillary Orders sought by the Crown were directed at the sentencing hearing. Heard on the 27 th day of March, 2016.

Dated at the City of Edmonton, Alberta this 2 nd day of May, 2016.

S.J. Greckol J.C.Q.B.A. Appearances: Richard Tchir Alberta Justice for the Crown Lisa Trach Trach Law for the Accused