R v Isadore, 2016 ABQB 83

Court of Queen ’ s Bench of Alberta Citation: R v Isadore, 2016 ABQB 83 Date: 20160210 Docket: 130909062Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Tyrone Isadore and Brian Bergey Accuseds _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ [ 1 ] On February 10, 2016, I sentenced Mr. Tyrone Isadore and Mr. Brian Bergey. I advised that my reasons for the sentences imposed would follow. These are those reasons. I.

Tyrone Isadore [ 2 ] I convicted Tyrone Isadore of manslaughter as a participant in the group beating which resulted in Robert Felker’s death. I concluded that because of alcohol consumption by Mr. Isadore, I was in doubt about whether he intended Mr. Felker’s death. Mr. Isadore was also convicted of breaking into Chandar Singh’s home and assaulting Mr. Singh in his home. [ 3 ] I begin with the break and enter offence. Crown and defence agree that the sentence for this offence should run concurrently to the sentence I will impose upon Mr.

Isadore for manslaughter. [ 4 ] I do not intend to repeat any of the facts I found relative to this offence, unless necessary to explain the sentencing calculus. [ 5 ] For this offence, the Crown suggested a sentence of 4 years. The accused suggested a sentence of 18 months to 2 years.

[ 6 ] The Crown points to the following aggravating features: 1. The home was occupied; 2. The entry was violent and frightening and included breaking a window and diving into the room which was Mr. Singh’s bedroom where he had been sleeping; 3. Mr. Isadore has a long record for break and entry offences, the last of which occurred in 2009 with a sentence of 6 months. [ 7 ] In mitigation, Mr. Isadore points to the injury he suffered during his time in the Singh home. It is clear that he suffered a grave and disfiguring wound in the course of his criminal behavior. Mr.

Isadore argues that this is a mitigating factor because it is as if some on the spot punishment has already been meted out to him. I agree. Additionally, I am obliged to consider Mr. Isadore’s aboriginal history and heritage and to that end, I have been provided with a Gladue report. [ 8 ] The report details a history which is appalling. We, every one of us, bears some responsibility for creating the environment that earned us Mr. Isadore. He grew up surrounded by violence and addiction. From an early age, he had to steal to eat and to feed his brother. It is no wonder he too fell into addictions.

It is no wonder that the needs of his youth set him on the path of criminal behavior. To his credit, there is no violence in his record until now. During his lengthy time on remand, he has done a great deal to improve himself and to deal with his problems. I will have more to say on these subjects when I sentence Mr. Isadore for killing Mr. Felker and I will at that stage grant credit for time served.

However, and without double counting, it seems to me that the Court of Appeal’s approach in R v Courtoreille , [2013] ABCA 317, is the reasonable approach and allowing for some credit to capture the on the spot punishment he suffered, it is my view that a sentence of 2 years 2 months for this crime is appropriate. I have also considered R v Quinn , [2015] ABCA 250, but it is distinguishable because of the use of the weapon in that case. Again, Mr. Isadore’s sentence is to be served concurrently with the sentence that I will impose upon Mr.

Isadore for manslaughter. [ 9 ] I now move to determining the fit and proper sentence to impose upon Mr. Isadore for manslaughter. [ 10 ] The Crown seeks a sentence of between 10-12 years and suggests that the sentence should be closer to 12 because of the conviction for the break and enter at the Singh residence. Adjusting for time served would also be necessary. (The defence suggests a sentence of 4-6 years and then adjusting for time served.) It is reasonable to approach this sentencing on the basis of R v Laberge , [1995] ABCA 196. In particular, the first issue to address is the moral culpability of Mr.

Isadore in causing Robert Felker’s death. In that regard, moral culpability is much broader than mens rea . Moral culpability embraces the accused’s mindset and what he intended at the time of the offence and it also embraces the nature and quality of his unlawful actions. To put this another way, the greater the degree of Mr. Isadore’s subjective intention to kill, the higher the moral culpability. As well, the greater the objective likelihood of death by the accused’s actions, the greater the accused’s moral culpability.

Since increased moral culpability is not presumed, the onus of proof relies upon the Crown. [ 11 ] In this case, the Crown argues that Isadore’s actions, as part of this vicious group assault were objectively likely to cause Mr. Felker life threatening injuries. This is the highest category of objective moral culpability. As well, the Crown argues that despite Mr. Isadore’s intoxication, he knew that life threatening injury was probable as a consequence of his actions and the actions of the other assailants.

This is the highest level of subjective moral culpability. [ 12 ] I certainly agree that any objective consideration of Mr. Isadore’s conduct establishes that it was likely to cause Mr. Felker life threatening injury. The forensic evidence at trial established that Mr. Felker’s death could have resulted from the trauma suffered by Mr. Felker before he was struck by the 2x4. As well, although I was unable to determine who jumped on Mr.

Felker’s head and who kicked him in the head, this was a gang assault and I concluded that the acts of one were the acts of all at least until the initial attack stopped. [ 13 ] However, as I have said, it is for the Crown to prove that Mr. Isadore had the highest level of subjective knowledge that the Crown has alleged. In my view, the Crown failed to prove that the accused fully appreciated the consequences of his and his co- assailants actions. I agree with Mr. Anderson and therefore, relative to the subjective intent determination, Mr.

Isadore must be taken to have known that he was engaged in actions likely to cause Mr. Felker serious bodily harm and to have recklessly pursued that activity in the fact of that knowledge. As such, in my view, Mr. Isadore falls between the second and third categories of subjective intention. [ 14 ] What are the aggravating and mitigating factors and how do they affect Mr. Isadore’s moral culpability? [ 15 ] The Crown points to the following aggravating factors: • Although there is no violence in his record, his record spans 17 years and there is at least one conviction in all but 4 of those years.

There is no conviction in 2012 because he spent that year in jail and 31 days after his release, he recommitted; • On the night of the offence, he was on parole and absent without leave from a treatment centre; • This was a group assault; • The amount of violence visited upon Mr. Felker included multiple skull and facial fractures; • This was a random attack without a known motive. [ 16 ] The mitigating factors include: • He is remorseful and has expressed that remorse in open court and in the Gladue report presented; • He accepts his responsibility;

• The time he has served awaiting trial. On that subject, the Crown argued that credit of less than 1.5 days for each day served oughtto be given because Mr. Isadore was absent without leave while on release as I have said. In my view, the Supreme Court of Canada’sdecision in R v Summers, [2014] SCC 26, provides that on a quantitative basis alone, Mr. Isadore would be entitled to credit at 1.5 to 1.Furthermore, s. 719(3.1), which might have served to fetter my discretion, has no application to this case. I understand as of today, thatMr.

Isadore has been in custody for 935 days. 150 of those days were served on another sentence. Therefore, on a 1.5 to 1 calculation,Mr.

Isadore would be entitled to a credit of 3 years 91 days against whatever sentence I conclude is appropriate. [17] I was provided with the following authorities: • R v Laberge, [1995] ABCA 196 • R v Holloway, [2014] ABCA 87 • R v S.D.C., [2013] ABCA 46 • R v Keepness, Keepness and Pewean, [2010] SCKA 69 • R v Guitar and Veinot, [2001] ABCA 58 • R v MacIntyre, 1992 ABCA 319 , [1992] AJ No. 1088 (CA) • R v Aubuchon, [2015] ABCA 242 • R v Koerner, 1990 ABCA 205 , [1990] 108 A.R. 330 (CA) • R v Ly, [1994] B.C.J.

No. 2390 (CA) • R v Gladue, (SCC), [1999] 1 S.C.R. 688 • R v Strongman, [2007] ABQB 370 • R v Wharry, [2007] ABQB 462 • R v Small-Buffalo, [2009] ABQB 353 • R v Sinclair, [2011] ABQB 151 • R v Valente, [2012] ABQB 151 • R v Friday, [2012] ABQB 371 • R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433 • R v Decoine-Zuniga, [2014] ABQB 155 • R v Swampy, [2015] ABQB 319 • R v Klymok, [2002] ABPC 95 • R v Olsen, [1994] ABCA 111 • R v C.S.R., [2002] OJ No. 4199 (CJ) • R v Carter, [2010] BCSC 853 [18] To paraphrase Watson J.A. in Holloway, at para 50: To the extent that the cases provided are truly comparable they will assistin fairly identifying an indication of a range of proportionality. [19] The cases provided don’t really identify more than a broad range of possible outcomes.

There is no doubt that in those caseswhere the third or highest category of Laberge was found applicable, the sentences trended towards 10 plus years. On the other hand,there are a number of cases where somewhat comparable circumstances were found or counsel conceded that the circumstances were inthe middle Laberge category. Sentences in that range were around 5 years. Quite often the sentence was within the scope of the sentencesuggested by the Crown. In result, the cases provided offer only slight illumination. [20] As I have said, Mr.

Isadore’s crime approaches the most morally culpable category of manslaughter. It is more on a par withcases such as Holloway, Swampy, Guitar, and even Strongman then with Friday, Valente, and Sinclair. The Decoine-Zuniga case issomewhat analogous factually, but the deceased managed to get away from the group beating and when he was caught, the accused wasmerely present when the deceased was then stabbed. As well, the Crown in that case sought only 4 to 6 years as a sentence. There weremitigating factors in that case which led to the sentence imposed of 5 years.

At this stage, I am focussed on finding an appropriatestarting point before considering what might add to or detract from Mr. Isadore’s moral culpability. [21] I have concluded that 9 years is the appropriate sentencing point at which to begin the calculus. I recognize that the sentencesimposed in the cases which I have considered, were imposed after considering both aggravating and mitigating circumstances. In thiscase, the aggravating features related to the crime itself, have been considered and factored into the starting point by virtue of the process

of determining moral culpability. There are additional aggravating circumstances personal to the accused which remain to be considered.As to the mitigating circumstances, I have attempted to filter out the particular mitigating circumstances in those cases examined inarriving at my starting point. Mitigating circumstances will be considered after I have dealt with the aggravating circumstances personalto the accused. [22] The fact that the accused has a long record and was violating his release conditions at the time of his crime serves to add to hismoral culpability.

Both would increase the prospective sentence or starting point. [23] There are mitigating factors. Firstly, Mr. Isadore is remorseful. He expressed that remorse to the Gladue report writer and tothe family and friends of Robert Felker present in the courtroom. Mr. Isadore has also accepted his responsibility for the death of Mr.Felker. [24] Secondly, I must consider the impact of the Gladue report. In that regard, I am indebted to Ms. Brenda Joy Sinclair for hervery thorough and revealing report. Mr. Isadore is a registered treaty Indian and has band membership in the Driftpile Cree Nation.

Thatfirst nation is on the south shore of Lesser Slave Lake. [25] His mother was taken into care as a child and was fostered until she was a teenager. She was the victim of violence and sexualabuse. Mr. Isadore remembers lots of violence and drinking in his home and that his mother was beat up a lot. He and his brother wereapprehended then returned to their mother, than apprehended again and again returned. For most of his early youth, he was labelled aproblem child because he would enter others’ homes on the first nation to take food and clothing so that he and his brother could eat andhave something to wear.

By the time he was 12, the die was cast and he started consuming substances and stole to support his habits. Asa result, he spent some of his youth in youth correction facilities. The notorious residential schools experience was suffered by hisgrandparents, who resorted to alcohol abuse and neglect. Their child, his mother, was a product of that environment and that is theenvironment she provided for Mr. Isadore. It is ironic that Mr. Isadore loves his mother and she is one of his supports along with hisbrother, Tyrell, the same brother for whom the accused stole in order to feed and clothe him.

To his credit, Mr. Isadore is 30 credits shyof having completed Grade 12, in part because of the schooling he received while housed in youth facilities. Relative to his addictions,Mr. Isadore has completed numerous programs and has long stretches of sobriety, but only while incarcerated, and he admits he alwaysreturns to drinking. [26] Mr. Isadore has good intentions, the prospect of support from his Cree nation, a positive attitude and insight into hisbehaviors. There is reason for optimism for his future. [27] As I indicated earlier in these reasons, we, all of us, bear some responsibility for Mr. Isadore.

We, all of us, created theenvironment that produced his grandparents, his mother and him. In my view, part of the reason that we need Gladue reports is to allowthe real story of the offender to be known and to acknowledge our role in creating the person that we must punish. [28] The over-representation of aboriginals in Canada’s prison population prompted Parliament to enact s. 718.2(

e) of the CriminalCode. As such, I am required to consider “all available sanctions other than imprisonment that are reasonable to the circumstances... withparticular attention to the circumstances of aboriginal offenders”. The Supreme Court of Canada in R v Gladue, (SCC),[1999] 1 S.C.R. 688, has interpreted that direction to mean that a sentencing judge should apply principles of restorative justice as part ofor in place of the usual sentencing principles.

In that case, the victim and the accused were members of the same community and theCourt’s focus was on the fact that the community might benefit more from restorative measures. In the case before me, Mr. Felker wasnot a member of the accused’s community. As well, the Court’s admonition to apply principles of restorative justice generally was notwidely adopted. In an attempt to rectify that situation, the Court issued its decision in R v Ipeelee, [2012] SCC 13.

The Court was therefaced with determining how to deal with 2 aboriginal men who had violated their respective long term supervision orders. [29] Firstly, the Court focussed on proportionality as the fundamental purpose for sentencing, a sentiment recently repeated in R vLacasse, [2015] SCC 64. Speaking for the Court, at para 37 in Ipeelee, Justice LeBel said this: The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing – themaintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem.

As Wilson J. expressed in her concurring judgment in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985]2 S.C.R. 468 (S.C.C.), at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [30] Then at paras 50 and 51, Justice LeBel identified the purpose of long term orders.

In that portion of his opinion, he highlightsthe fact that rehabilitation is one of the goals of such orders and it is also a goal in sentencing someone who has breached such an order.In my view, in effect, the process is identical to any sentencing where denunciation and deterrence as measures of public protection mustalso be balanced with rehabilitation. [31] Justice LeBel then addressed the key direction of the Court’s Gladue decision in these words at para 61: It would have been naïve to suggest that sentencing Aboriginal persons differently, without addressing the root causes of criminality,

would eliminate their overrepresentation in the criminal justice system entirely. In Gladue , Cory and Iacobucci JJ. were mindful of this fact, yet retained a degree of optimism, stating, at para. 65: It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flow from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.

It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. [ 32 ] Again at para 64 through 68, Justice LeBel reiterates the role that sentencing courts must play to address over representation. [64]

Section 718.2 (

e) of the Criminal Code and this Court’s decision in Gladue were not universally well received. Three interrelated criticisms have been advanced: (1) sentencing is not an appropriate means of addressing overrepresentation; (2) the Gladue principles provide what is essentially a race-based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity. In my view, these criticisms are based on a fundamental misunderstanding of the operation of s. 718.2(

e) of the Criminal Code . [65] Professors Stenning and Roberts describe the sentencing provision as an “empty promise” to Aboriginal peoples because it is unlikely to have any significant impact on levels of overrepresentation (P. Stenning and J. V. Roberts, “Empty Promises: Parliament, The Supreme Court, and the Sentencing of Aboriginal Offenders” (2001), 64 Sask. L. Rev. 137, at p. 167). As we have seen, the direction to pay particular attention to the circumstances of Aboriginal offenders was included in light of evidence of their overrepresentation in Canada’s prisons and jails.

This overrepresentation led the Aboriginal Justice Inquiry of Manitoba to ask in its Report: “Why, in a society where justice is supposed to be blind, are the inmates of our prisons selected so overwhelmingly from a single ethnic group? Two answers suggest themselves immediately: either Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system” (p. 85; see also RCAP, at p. 33). The available evidence indicates that both phenomena are contributing to the problem (RCAP).

Contrary to Professors Stenning and Roberts, addressing these matters does not lie beyond the purview of the sentencing judge. [66] First, sentencing judges can endeavour to reduce crime rates in Aboriginal communities by imposing sentences that effectively deter criminality and rehabilitate offenders. These are codified objectives of sentencing. To the extent that current sentencing practices do not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities.

As Professors Rudin and Roach ask, “[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other people who commit the same offence go to jail?” (J. Rudin and K. Roach, “Broken Promises: A Response to Stenning and Roberts’ ‘Empty Promises’” (2002), 65 Sask. L. Rev. 3, at p. 20). [67] Second, judges can ensure that systemic factors do not lead inadvertently to discrimination in sentencing.

Professor Quigley aptly describes how this occurs: Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment.

When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination. (T. Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in R. Gosse, J. Y. Henderson and R.

Carter, eds., Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269, at pp. 275-76) Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination. [68]

Section 718.2(

e) is therefore properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ” ( Gladue , at para. 64 (emphasis added)). Applying the provision does not amount to “hijacking the sentencing process in the pursuit of other goals” (Stenning and Roberts, at p. 160).

The purpose of sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality. Just sanctions are those that do not operate in a discriminatory manner.

Parliament, in enacting s. 718.2 (e), evidently concluded that nothing short of a specific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly. [ 33 ] Finally, at paras 70-73, Justice LeBel deals with the notion of race based sentence discounting. [70] The sentencing process is therefore an appropriate forum for addressing Aboriginal overrepresentation in Canada’s prisons.

Despite being theoretically sound, critics still insist that, in practice, the direction to pay particular attention to the circumstances of Aboriginal offenders invites sentencing judges to impose more lenient sentences simply because an offender is Aboriginal. In short, s. 718.2 (

e) is seen as a race-based discount on sentencing, devoid of any legitimate tie to traditional principles of sentencing. A particularly stark example of this view was expressed by Bloc Québécois M.P. Pierrette Venne at the second reading for Bill C-41 when she asked:

“Why should an Aboriginal convicted of murder, rape, assault or of uttering threats not be liable to imprisonment like any other citizen of this country? Can we replace all this with a parallel justice, an ethnic justice, a cultural justice? Where would it stop? Where does this horror come from?” ( House of Commons Debates , vol. 133, 1st Sess., 35th Parl., September 20, 1994, at p. 5876). [71] In Gladue , this Court rejected Ms. Gladue’s argument that s. 718.2 (

e) was an affirmative action provision or, as the Crown described it, an invitation to engage in “reverse discrimination” (para. 86). Cory and Iacobucci JJ. were very clear in stating that “ s. 718.2 (

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal” ( Gladue , at para. 88 (emphasis added)). This point was reiterated in R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207, at para. 30 . There is nothing to suggest that subsequent decisions of provincial and appellate courts have departed from this principle. In fact, it is usually stated explicitly. For example, in R. v. Vermette , 2001 MBCA 64 , 156 Man. R. (2d) 120, the Manitoba Court of Appeal stated, at para. 39: The

section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equality, sometimes different people must be treated differently. [72] While the purpose of s. 718.2 (

e) may not be to provide “a remission of a warranted period of incarceration”, critics argue that the methodology set out in Gladue will inevitably have this effect. As Professors Stenning and Roberts state: “. . . the practical effect of this alternate methodology is predictable: the sentencing of an Aboriginal offender is less likely to result in a term of custody and, if custody is imposed, it is likely to be shorter in some cases than it would have been had the offender been non-Aboriginal” (p. 162). These criticisms are unwarranted.

The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which 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. [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.

This is perhaps more evident in Wells where Iacobucci J. described these circumstances as “the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct” ( Wells para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani , 2002 ABQB 1097 , 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . [ 34 ] From the perspective of moral culpability, Mr.

Isadore consumed alcohol voluntarily and must be held accountable for the events that ensued from that voluntary action. On the other hand, such was his environment and in the absence of supports, his destiny. In my view, therefore, his overall moral culpability is much less than would be the case for the perpetrator who has not suffered the systemic discrimination and cultural challenges faced by the generations of indigenous persons of the Driftpile Cree Nations.

In terms of deterrence and denunciation, incarceration has been held to be necessary, but in this case addressing the communities’ longer term interests in crime free behavior by Mr. Isadore is also an important option which cannot be discounted simply because of the crime committed. In this case, there are a number of options available to me to protect against future criminal behavior apart from simply locking Mr. Isadore away. He has accomplished a great deal in an environment which provides limited programming. He is reconnecting with traditional ways, and seems motivated to deal with his addictions.

Having said all that, however, there is more that Mr. Isadore can and should do to set himself up for success upon his release from prison. [ 35 ] Finally as I have said, Mr. Isadore is entitled to credit for the time he has served which means he is entitled to credit of 3 years and 3 months. [ 36 ] In all the circumstances, I believe a fit and proper sentence is one of 6.5 years. However, because of time served and credit for that time served, the effective sentence is one of 3 years and 94 days. [ 37 ] In addition, an order in Form 5.03 will issue for samples of Mr.

Isadore’s DNA and a lifetime weapons prohibition will also issue. I chose not to impose a victim fine surcharge. II. Brian Bergey [ 38 ] I move now to the sentencing of Brian Bergey. [ 39 ] Obviously, given the findings I made in the trial, and my comments respecting the analysis of moral culpability relative to Mr. Isadore, the moral culpability starting point for Brian Bergey must be exactly the same as the starting point for Tyrone Isadore. Therefore I start at 9 years before considering the aggravating and mitigating factors particular to Mr. Bergey. [ 40 ] As to aggravating factors, Mr.

Bergey has a long criminal record which includes a conviction for sexual assault when he was 13 and includes 5 instances of assault and a robbery conviction. He has been convicted at least once a year since 2004 until he was incarcerated on this crime in 2013 except for 2010 because he spent that year in jail.

[ 41 ] As well, he was on judicial interim release on offences involving allegations of assault in Saskatchewan when he committed this crime. That process remains outstanding. These factors serve to increase Mr. Bergey’s moral culpability. [ 42 ] In terms of mitigating factors, Mr. Bergey does not accept responsibility for his actions, but he did and does express remorse for the loss of life and his involvement. He did cooperate with police. As well, Mr. Bergey has done extremely well while on remand for this offence.

He has availed himself and successfully completed a number of programs, including long term participation in the Boot Camp program. Ms. Connie Leonard, a case worker at the remand centre, wrote this about Mr. Bergey: Brian Bergey has been at the Centre since July 2013 he was one of the first people to go into the Boot Camp Program and set an example for others to follow.

Since incarceration Brian has been involved in the following Aboriginal Programs: Smudging’s Pipe ceremonies Cree lessons Drum groups Art program Sharing Circles Other courses: Anger management Parenting Addictions Peek Positive energy and thought First Aid Life skills Yoga classes Tai Chi classes Bio Hazard Training Laundry Brian has been involved in food drives, fund raising for the Children’s Stollery he is a team lead on the Boot Camp as well as the PT program. Brian has continued to better himself by taking courses and encouraging others to get involved he continually leads by example.

Over the past 18 months I have had the opportunity to spend time with Brian on a one to one basis; Brian wants to continue being involved with the culture and I will assist him to stay connected in the community. I would also recommend a treatment program perhaps Foot Prints in Alexander or Poundmakers Lodge. I recommend this as after incarceration for a period of time treatment can help with the transition to the community. For further information please contact the writer. [ 43 ] The sincerity of those comments was backed up by Ms. Leonard’s attendance in court during the sentencing hearing.

That is extraordinarily unusual and speaks volumes. She also advised that she would support him on release and feels he needs structures and supports which can be more easily accessed in a provincial jail followed by a half-way house. As well, Mr. Sutherland of Alberta Health Services and the remand centre’s health liaison also attended in support of Mr. Bergey. I was told that he held the opinion that Mr. Bergey was always positive, a leader and a role model in the institution. He also believes that Mr. Bergey will do well on release but will need a half-way house to start. From this, it is plain that Mr.

Bergey has made serious and impressive efforts to put himself on the right path. Given his antecedents, his progress is remarkable. [ 44 ] The Gladue report was prepared by Ms. Patricia Robbins and is very helpful. Mr. Bergey’s antecedents are tragic. He is a first nation member of the Pasqua First Nation #79 which is located between Regina and Fort Qu’Appelle. He never met his mother and only met his other siblings in adulthood. He was raised predominantly by his father’s parents and his father’s sisters, one of whom he thought was his mom but whom he later found out to be his aunt.

He was exposed to and the victim of physical abuse. He was also the victim of sexual abuse, as a 6 year old. In his early years, he was surrounded by alcohol and violence. After a brief time with an aunt in Regina, he was apprehended by Child Welfare. His initial placements were abusive but then he had a three year stretch from the ages of 12-15 where he said he was well treated. However, he was returned to his family after a stay in a youth facility for sexual assault. Mr. Bergey has been diagnosed with FAS and was prescribed medication for ADHD which his father would take and sell. Mr.

Bergey started abusing substances at age 11 and used predominantly alcohol and marijuana. His mother in law, Carol, describes his addictions as follows at page 16 of the report: ... In addition, Carol offered her observations of Brian as he struggled with substance abuse; He had his good points and he had his bad points... he was holding a job down for a little while, and then he got with his dad and his girlfriend (were doing needles) and then they got Brian hooked on stuff, and that’s when things started going downhill again.

She added, Brian was good to a point... when he wasn’t on drugs and was sober... he was a totally different guy. The only substance abuse treatment Brian has participated in has been during his incarceration. He has attended Alcoholics Anonymous meetings on a weekly basis, and various addictions courses as part of his bootcamp program at the Edmonton Remand Centre. Brian recalled these experiences as, “really good”.

He added, “I like doing groups with other people... it’s better to not hold it in.” With respect to future treatment options, he intends to continue with substance abuse treatment programming upon his release in order to maintain his sobriety. Brian is currently creating a discharge plan with his social worker regarding his living and rehabilitation plans after his release, and is considering a halfway house in Edmonton or Alexander. Brian commented on the positive effects of participating in substance abuse treatment;

Been clean three years now... I like being normal... I like myself now... people can actually talk to me, people care about me and love me... it’s going to be emotional when I leave. I liked the cultural stuff, picking medicine and going for ceremonies, helping others... doing the singing... I’m going to do lots out there, and I’d still go to a hallway house.” [ 45 ] Mr. Bergey had some exposure to his culture through his grandparents but has thoroughly embraced it while institutionalized. It is reportedly one of the things that Mr.

Bergey points to as a support for future law abiding behavior. [ 46 ] On the whole, the report paints a picture of a changed man. One who has made a great deal of progress towards facing his past and adopting a healthy and productive lifestyle. It is the progress Mr. Bergey has made, his circumstances and the plight of aboriginals in our justice system which prompted his counsel, Ms. Garcia, Ms. Leonard and Mr. Sutherland to recommend incarceration in the provincial system for something less than 2 years to be followed by a period of probation.

While tempting, especially given the fact that the effective period of supervision with that kind of sentence would be much longer than the period of supervision that I must ultimately impose, I cannot accept the proposal. Simply put, Mr. Bergey’s moral culpability and the aggravating features of his crime are too serious to be overcome by the many positive and mitigating factors applicable here. [ 47 ] In my opinion, while the aggravating features of his crime are more significant than those attributable to Mr. Isadore, Mr. Bergey has made much greater progress.

In the end, it is my view that the sentencing calculus, after considering all the circumstances and paying particular attention to the systemic discrimination and cultural challenges both men have faced, requires me to treat both men the same. [ 48 ] Of course the principle of parity would suggest that result in any event. However, when dealing with aboriginal offenders as opposed to non-aboriginal offenders, it is my view that parity must and will often be overcome by the need for proportionality, s. 718.2 (

e) and the direction of the Supreme Court of Canada in Gladue and Ipeelee compels that conclusion. [ 49 ] As to time served, again allowing a credit of 1.5 days for every day served, Mr. Bergey would be entitled to a credit of 3 years 6 months. [ 50 ] In all the circumstances a fit and proper sentence for Brian Bergey is one of 6 years 6 months. Granting him credit for time served, the sentence I impose upon him is one of 3 years. As well, an order on Form 5.03 will issue for samples of Mr. Bergey’s DNA and a lifetime weapons prohibition will also issue. Again I choose not to impose a victim fine surcharge.

Heard on the 25 th , 26 th and 28 th days of January, 2016. Dated at the City of Edmonton, Alberta this 10 th day of February, 2016. T.D. Clackson J.C.Q.B.A. Appearances: Breena Smith & Carrie Sharpe Alberta Justice for the Crown Derek Anderson

Barr Picard Knisely for the Accused, Tyrone Isadore Lauren Garcia Dawson Duckett Shaigec & Garcia for the Accused, Brian Bergey