R. v. Marshall, 2022 BCPC 160

Citation: R. v. Marshall 2022 BCPC 160 Date: 20220616 File No: 35160-2-C Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WALTER ALFRED MARSHALL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. STEWART Counsel for the Crown: K. Costain Counsel for the Defendant: A. Turton, Q.C. (by teleconference) Place of Hearing: Terrace , B.C. Date of Hearing: April 20, 2022 Date of Judgment: June 16, 2022

[ 1 ] THE COURT: It is for me to decide Walter Marshall's sentence for crimes he admits committing on December 18, 2020. Count 1 is his aggravated assault of Belinda Bangay; Count 1 is a reference to the assault with the hammer; Count 2 is the knowing utterance of a threat to Ms. Bangay to kill her; Count 5 is the crime of committing the assault of Ms. Bangay, Mr. Bangay, and Mr.

Branch using a weapon, that being his vehicle; Count 7 being the crime of operating a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public; and Count 9 is his having operated that same conveyance with a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] I will not repeat the circumstances in any detail and, really, to any extent other than as necessary to comment on aggravating and mitigating factors.

There is no issue taken with the facts that were carefully and thoroughly summarized by Crown counsel and, in repeating them, there is a concern here that we may exacerbate the trauma endured by Mr. Marshall's victims, Ms. Bangay, Mr. Bangay, and Mr. Branch. [ 3 ] Mr. Marshall was arrested on December 18 and ordered detained on December 23, 2020. He has remained in custody throughout. His actual time in custody is now 544 days, with credit for time served at 816 days. That is likely to have been explained to the victims by Crown counsel. I should restate it is not a discounting.

It is the reality that a sentence, a provincial sentence, earns a remission in terms of provincial parole. People typically serve two-thirds and then are paroled. Giving credit for time served acknowledges that pretrial credit does not attract the parole rules. That credit of 816 days' time served is four days shy of a sentence of two years and three months. [ 4 ] It is acknowledged in defence submissions that a jail sentence is appropriate. Defence submits that sentence should be the low end of the Crown's submitted range of three years.

A sentence of three years with credit for time served results in a sentence today of nine months' new time. A sentence of four years with credit for time served would result in a sentence of 21 months or one year nine months' new time. I am indebted to counsel, as is so often the case, for their thorough review of the sentencing authorities and for narrowing the range that is left for me to consider. Once credit for time served is accounted for, the difference between the defence submission and the upper range of the Crown's submission is 12 months.

Other than the issue of restitution, the remaining consideration and terms on sentencing are not contentious. [ 5 ] This decision must be made in accordance with the fundamental purpose of sentencing and having regard to certain enumerated objectives. They are referred to as denunciation, deterrence, the separation of offenders from society, rehabilitation, reparations, and the promotion of a sense of responsibility in offenders. A sentence must be proportionate to the gravity of the offence having regard to the aggravating and mitigating factors.

Certain of those aggravating and mitigating factors are prescribed or set out in the Criminal Code . Here, s. 718.2(a)(iii.1), referencing significant impacts to a victim, is a dominant consideration. [ 6 ] I need regard similarity in sentencing, and I need also look at whether available sanctions limiting the deprivation of liberty will achieve the fundamental purpose and principles of sentencing. I must also take into consideration the circumstances of Aboriginal offenders. Mr. Marshall is Indigenous. [ 7 ] I will begin with a review of the gravity of the offence.

I note in the Crown's submissions reference to the fact that Mr. Marshall was causing a disturbance at 5:00 p.m., described to have been screaming at staff and kicking at the door. This is in response to their request that he exit the premise. It is one hour later that Ms. Bangay and her family and a friend arrive. I note that, for me, this undermines or at least puts in context the sense of impulsivity. It is not an escalating reaction in a moment. This anger, his inability to calm himself, this inability to control his emotions was to a degree somewhat protracted. [ 8 ] Mr. Marshall gets into his truck.

He uses it as a weapon. I note that he reversed and drove forward into the victims' vehicle three times. He then exited the vehicle, armed himself with a separate weapon, and started smashing the windows and the car with a hammer. [ 9 ] With reference to the threat, he screamed, "I am going to kill you." He referred to the victim in a very derogatory fashion. In the range of threats, uttering a threat is a crime without there being any other physical contact, physical aggression.

Such a threat of an intention to kill in the circumstances where, particularly in terms of the use of the vehicle, a weapon was used in a manner that created a real risk of death, that is a serious threat. Mr. Marshall only stopped his violent, aggressive, assaulting, insulting, and terrorizing behaviour when an officer arrived and told him to get to the ground. [ 10 ] In terms of the gravity of the offence and the severity of the offence in the range of offences for which he has pled guilty, these are serious crimes. [ 11 ] Significantly in terms of mitigation is his guilty plea.

There is no doubt but the Crown's case here was strong. There were numerous witnesses, but we must never lose sight of the fact that a guilty plea saves victims from the ordeal of testifying.

It remains the Crown's burden to prove an offence to the very high standard of proof beyond a reasonable doubt and the marshalling of resources and the marshalling of victims and, in particular, the very difficult task of asking someone to speak of their trauma in a very public way and be asked detailed questions about that is something that, when avoided through a guilty plea, credit should be given to an offender for pleading guilty and sparing victims from that process. [ 12 ] Also in mitigation is Mr. Marshall's remorse. I have reviewed with care his comments in the victim -- sorry, in the presentence report.

It is regrettable that there are aspects of victim-blaming. There are aspects of justification and minimizing his behaviour. They are focused institutionally or focused at the decision of the residence to ask him to leave, but ultimately, both with reference to the plea and in terms of his words spoken, I accept that his remorse is genuine and that it is deep. [ 13 ] Further, with respect to the gravity of the offence, obviously, aggravating, the use of two separate weapons, the vehicle and the hammer. Also aggravating is the fact that the victims were then trapped inside of the car.

Aggravating is the duration of the assaultive behaviour. It was not a single act. It was driving the car forward, reversing, repeating that three times, multiple strikes of the -- are you

okay? Okay? [ 14 ] BELINDA BANGAY: Yup, it just -- [ 15 ] THE COURT: That is fine. [ 16 ] Multiple strikes on the vehicle, and I just want to acknowledge I mean what I said in terms of -- I try to avoid spending too much time in terms of the circumstances because of this. It must be hard to hear. I do so primarily so that Mr. Marshall can understand his sentence, so the community can understand the sentence, and most specifically, should it be thought that my decision would benefit from oversight from an appellate body, they understand that I made these findings. [ 17 ] All right, and Mr.

Marshall, so you can understand why I am explaining that and speaking directly to the victims, it is because there is emotion here today and that is, of course, understandable. [ 18 ] Also aggravating is the existence of Mr. Marshall's past criminal record and, in this regard, in particular, where in the presentence report reference is made to communications with Mr. Ciccone in Prince Rupert and Ms. Jackson in Prince Rupert. There have been prior opportunities for rehabilitation and reflection and there has then been opportunities and advice on supports available to Mr.

Marshall that, regrettably, in the circumstances he did not avail himself of. Although, I state that layered with the reality that is apparent from Mr. Marshall's criminal record and it is further apparent in terms of the circumstances of this case that he is someone who suffers from a substance abuse disorder. It would appear as though he is an alcoholic. [ 19 ] In terms of Mr. Marshall's individual circumstances, I note his family history is one where there is early familial tragedy. By the age of six, he has lost both of his parents, his father to cancer, his mother to a motor vehicle accident.

He is then raised in foster care. [ 20 ] It is only later in life that Mr. Marshall becomes aware of his Indigenous heritage, that he is Tlingit from the region which borders Northern B.C., the Yukon, and Alaska. While he does not realize that is his heritage, one can look at his history and, in particular, his time in foster care as an experience that parallels many other Indigenous children. By the circumstances, it is not apparent to be what is often referred to in the context as the '60s Scoop, it is the right timeframe.

Here, it is not a circumstance where he is taken into care for reasons other than the loss of his parents, but his experience is similar to many others who went into care in that period. [ 21 ] Of significance, the siblings are not kept together in the same home resulting in the loss of familial connection both with siblings at a time when such a connection would be paramount and with other relatives of his parents. He is raised in an environment where he is not told of his Indigenous heritage. He is raised in an environment where he experiences racism and negative racial comments about Indigenous people.

There is a high degree of -- not necessarily physical abuse -- but very severe corporal punishment which is a form of abuse. These all, then, are significant Gladue considerations and, obviously, then, a total disregard for Indigenous heritage and preserving Mr. Marshall's Indigenous roots and Indigenous culture. [ 22 ] Despite those barriers in his childhood, Mr. Marshall has been through his life relatively high functioning, at least in terms of objective measures or performance. He has a significant employment history.

He worked as a firefighter in forestry and then, obviously, became a heavy equipment operator. When he moved to Prince Rupert, he became a permanent employee of the City of Prince Rupert for the better part of a decade. Beyond that employment, he achieved the status as a union representative, working for the City of Prince Rupert. Regrettably, his employment ended in Prince Rupert in circumstances that he remains upset about.

He then found work in the oil patch and it is not specified, but he obviously had skills both from his time as an equipment operator and his time working in the City of Prince Rupert to work in the oil patch. [ 23 ] It is in the relatively recent history that Mr. Marshall found himself without housing, living in his pickup truck, and otherwise in shelters in the community of Terrace. It is well apparent, both by his record and his acknowledgment of the circumstances here, that he was struggling to refrain from the consumption of alcohol.

In the Christmas period, and with others that he knew indulging in alcohol, he did and his impairment is an aspect of the offences that he committed here. Obviously, with respect to the driving over .08, but also in terms of his poor judgment, loss of impulse control. [ 24 ] I will turn next to the caselaw that was submitted. This is important in terms of placing the gravity of these offences within a range so the sentence here is similar to other sentences that are imposed. Crown cited R. v. Nguyen , a 2016 decision of the B.C. Court of Appeal, neutral citation, 2016 BCCA 408 .

The defence, in reviewing this case, referenced paragraph 29 that Mr. Nguyen's crime was spontaneous and this is then in this context that there were submissions made characterizing Mr. Marshall to have overreacted in the moment. But as indicated earlier, when I reviewed the submitted facts and noted the timeline in terms of the early attendance of the RCMP, there is a longer duration here which is of significance in my assessment of this crime, where the earlier disruption with the people working at the 'Ksan Housing Society had occurred at 5:00 p.m. and that Ms. Bangay attended shortly before 6:00 p.m.

Certainly, there is no sense of any concept of premeditation or planning. [ 25 ] There is then, this sense of Mr. Marshall's antisocial behaviour here being protracted. It differentiates this circumstance from those referenced in the Court of Appeal's consideration of a range of the low-end-range cases where there is what is referred to as a consensual fight that escalates to a point that becomes aggravated in their injuries and the higher end of the range where things are planned and more protracted.

I would not place this in that context in that very high end of the range, but certainly it is more than just an emotional overreaction. [ 26 ] Further, there are the steps of then getting into the car, putting a car in gear, using it as a weapon, doing so more than once, getting out of the vehicle, locating something in his own vehicle that he could use as a weapon. In further contrast to the case in R. v. Nguyen , Mr. Nguyen used no weapons. Here, of course, I have earlier referenced two different weapons. [ 27 ] The Crown cited the case mostly for the appellate commentary on range.

That is at paragraph 47, page 13, where the Court of Appeal there found that: The sentencing judge correctly described the range of sentences for aggravated assault as being between 16 months and six years . . .

Craig at paragraph 10; R. v. Finlay , at paragraph 48; R. v. Johnson at paragraph 10, citing Madam Justice Prowse saying in regard to where within that range a case will generally fall: Sentences at the lower end of the range tend to be imposed in “fight” situations in which the altercation escalates and results in injuries to the victim.

Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon, without provocation and without any opportunity to defend themselves. [ 28 ] In Nguyen , the court there, in its view, had regard to the sentences imposed or upheld in the decisions of this court referenced by the sentencing judge and found that the sentence imposed on Mr. Nguyen did not offend the parity principle. Here, Mr. Marshall's crimes tip into the higher end of that range. [ 29 ] The next case cited was R. v.

Craig , 2005 BCCA 484 , a 2005 decision of the British Columbia Court of Appeal, page 5, paragraph 10. This is an earlier decision than Nguyen , but again, the Court of Appeal establishing the range referenced in Nguyen. It is a consistent range, 16 months to six years. Stating again, the upper end is an unprovoked assault -- attack with a weapon while a consensual fight that escalates to result in injuries is the lower end. [ 30 ] R. v. Haj-Ahmed , 2007 BCCA 143 , was a defence appeal of the five-year sentence.

A significant aggravating feature in that case was that the victim was sleeping at the time of the offence, less commonly an aggravating feature in an aggravated assault, more commonly a feature in different types of assaults and, regrettably, very often a common feature in sexual assaults, but wherever a person is sleeping or unconscious at the time that they are assaulted, it is understandable that that is an aggravating circumstance. [ 31 ] It is very difficult and nearly impossible, and I do not mean to compare the horrifying aspects of certain assaults.

I do not in any way mean to diminish the experience of every victim of such serious forms of assault, but in the case of Ahmed , it was a burning that was inflicted. The case of Ahmed is largely a decision on the proper consideration of the presence or absence of remorse and how that is treated in the context of a person who asserts their clear right to a trial and to have the crimes against them proven by the Crown to proof beyond a reasonable doubt. As indicated before, Mr.

Marshall did not avail himself of his right to a trial, pled guilty, and with the caveats in terms of diminishing his responsibility and deflecting responsibility to the institutional decision to ask him to leave, I do find that he is now remorseful. [ 32 ] I will turn now to the victim impact. The consequences to the victims here are understandably significant and enduring. Again, I do not intend to review them all in detail.

The victims, two of whom are here today, lived through this, had the courage to be present during the sentencing hearing, prepared thorough victim impact statements, and I acknowledge their courage. [ 33 ] I will pause for a moment with respect to Ms. Bangay's circumstances, somewhat differentiating from those of her father and the family friend, and speak a bit about the 'Ksan Association and it is something that I have reflected on considerably.

In caselaw on sentencing, there are certain circumstances where there was understood to be a greater need for denunciation and deterrence. [ 34 ] Denunciation is a word I often think is necessary to explain. It is not used often in everyday experiences. What I traditionally think of it as is more of a declaration, a declaration to a community as to the seriousness of an offence. It is as though to shout out to a community that something must not occur; this is an incredibly serious crime.

Very often, in the concept of denunciation and the focus on denunciation, there is a focus in terms of a victim's vulnerability, children, women, domestic relationships with a particular focus on Indigenous women and Indigenous children. We also make that focus on denunciation and deterrence in the context of offences committed against peace officers. [ 35 ] There is often, then, references to people who are in positions of vulnerability who are in service to the community, bus drivers, cab drivers. I find that here there is a significant parallel. The 'Ksan Association and, in particular, I will say Ms.

Bangay dedicated her life and her career to serving the most vulnerable in our community and it is not something that is reflected upon significantly and it ought to be. That, in serving the most vulnerable in their community, they are making themselves vulnerable through their intersection with people who are vulnerable and people who are suffering from mental health issues and in the grips of active addiction. It is this confounding circumstance for our community and for the court and, obviously and understandably, for Ms.

Bangay, there is likely no one, including myself, present here today who understands the circumstances of someone like Mr. Marshall better than she. [ 36 ] There is likely very few in our community and certainly her ability to understand this is much greater than my own, and I say that having intersected with the same people in the community now for 30 years.

But housing those people and dealing with them on a day- to-day basis, she would understand them better than me and no doubt because of her commitment to those most vulnerable in the community, she has a greater compassion for those people in the community including the circumstances that Mr. Marshall found himself in. [ 37 ] I should comment that Ms. Bangay, and I say this to you, and I do not -- Mr. Bangay, you are here and I mean no disservice to your own victim impact statement and your own experience as a victim. Indeed, part of what you spoke about, Mr.

Bangay, is part of what you have experienced as you are upset over what your daughter has experienced and what she has lost. That is very common for families. Parents very often in very different circumstances were never present when a crime is committed against their child, but the court accepts that every family member is a victim of that crime [ 38 ] But, Ms. Bangay, I am indebted to you in terms of the care you took in writing your victim impact statement and offering an insight.

I want to be clear, it does not establish the significance of the impact to you as being greater, necessarily, than another person who has experienced a similar crime, it is just that you are very articulate and, in particular, there is a strength and a courage to you in your willingness to be completely transparent and selfless about what you have experienced and I want to acknowledge that. It has had a great impact not necessarily on the sentence, I do not want it to be suggested that Mr. Marshall's sentence is more serious or greater because of how well you expressed yourself.

More so, just to say that I have gained an insight into the experience of all victims of violent crime through your courage and through how articulate you are. The entirety of your written victim impact statement that is true of, it is the paragraph that I have looked at and I have circled here is the comment that [as read in]: For the past 13 years, the majority of my time has been spent supporting and empowering individuals who are struggling with their

mental health. Now, since the attack, I am the one suffering and I am unable to find relief. Not a day has gone by that I have not contemplated suicide. The guilt and shame I feel for losing my independence is so intense that I have a daily struggle just to stay alive. [ 39 ] My sincere wish for you is that you find a way to be healed and find a peace with respect to certainly concepts of guilt and shame. I do not mean to in any way invalidate the experience or diminish it. You are entitled to feel what you feel.

I do not mean to invalidate that, but the hope of this court and indeed one of the objectives of sentencing is that this is a step, there are many steps ahead, the road ahead of you is long, but that you find a greater peace. You need not be feeling that. I do not mean to invalidate it, but it speaks to the great complexity of people who experience violent crime. [ 40 ] The remaining contemplative consideration in the sentencing is the issue of restitution. I read with great care the case that was cited, that being the case of R. v. Abdulahi-Sabet , 2020 BCCA 213 .

A very different case, but it is cited for the approach we are to take in the context of restitution. In particular, Madam Justice Bennett's careful articulation of the comprehensive considerations necessary from her decision in R. v. Nanos , 2013 BCCA 339 , cited at paragraph 16 in Abdulahi-Sabet .

Very often restitution is focused upon in financial crimes, frauds, particularly where people defraud their employer, but it is not limited to those circumstances. [ 41 ] Here, and I asked questions of this, it is now some time ago in terms of where things stood, because there is an awareness of whether it is civil litigation that there are civil remedies or insurance remedies and that is made apparent in the reference to the insurer's differentiated consideration of damages to the vehicle affected through -- [ 42 ] THE CLERK: Your Honour, I apologize -- [ 43 ] THE COURT: Oh.

Sorry. [ 44 ] THE CLERK: -- but -- [ 45 ] THE COURT: Thank you. [ 46 ] THE CLERK: -- Ms. Turton got muted and so we just have to call back, [ 47 ] THE COURT: Oh, okay. [ 48 ] THE CLERK: I am sorry. [ 49 ] CNSL A. TURTON: Good morning, Andrea Turton speaking. [ 50 ] THE CLERK: Good morning, Ms. Turton, it's the clerk of the court. [ 51 ] CNSL A. TURTON: Thank you very much for calling back. I lost audio when His Honour got to -- as he was started to reference caselaw pertaining to restitution. [ 52 ] THE COURT: All right.

So, if I can explain what occurred is, by my moving my books, I hit a button on the phone and it caused a muting for Ms. Turton, but Ms. Turton, I do not purport to go back. I cited paragraph 16 in Abdulahi-Sabet and the references to sections from the decision of Justice Bennett in Nanos . [ 53 ] CNSL A. TURTON: Thank you, Your Honour. [ 54 ] THE COURT: Here, in my determination that there should be a measure of restitution, I have carefully reviewed all of the considerations necessary through Justice Bennett's comprehensive review of the caselaw. I will comment on two things here.

One is that the circumstances of Mr. Marshall at the time of this crime saw him without stable housing other than that provided to him through the 'Ksan Association and not working. Mr. Marshall is someone who has demonstrated a capacity for employment and relatively well paying employment both working for the City of Prince Rupert and then working in the oil patch. He was not completely without assets or possessions at the time that he committed the offence. He had a vehicle.

He indicates what few possessions he has he no longer has, have been left behind in Terrace, but he is someone who has a capacity for employment and that indeed has an intention and an ambition to return to paid employment. [ 55 ] I also comment here in terms of, then, the relationship between the upset and then the damages caused. It was the access to the housing, the 'Ksan Association, that led to the upset and then the use of the vehicle to then cause damage to the other vehicle albeit in the context of an assault. There is then that specific damage.

This relationship then between the 'Ksan Association and, in a manner, its loss of likely its most significant asset in terms of the commitment and devotion made by Ms. Bangay to that association and to the concept of housing. [ 56 ] It is easier in considering restitution to focus on physical damage, things that are measurable and objective. An example of that being the claim made by Mr. Bangay with respect to what in law is considered accelerated depreciation with respect to the vehicle. It is measurable. There is a market.

We ought not only fixate or consider restitution where such damages are clearly so measurable. There is no way to measure the damages experienced through trauma, but here and particularly in the context of Ms. Bangay where in the context of her employment, in the context of her commitment to being of assistance to those most in need, she has herself been someone who has been injured. Indeed, understandably at this point, does not seek to return to the profession that she had dedicated her life and her energy and her time to. [ 57 ] In the circumstances, I have decided that it is appropriate to effect restitution.

The restitution amount will be as submitted in the two restitution documents. With respect to both, it is clear that the amounts sought are less than the whole of the damages that would be - - [ 58 ] CNSL K. COSTAIN: Sorry, Your Honour, on the last day, Your Honour had sought some clarification as to whether the victims

wished to continue with those claims. [ 59 ] THE COURT: I missed that, sorry. [ 60 ] CNSL K. COSTAIN: My apologies. Ms. Bangay just has some concerns over whether a restitution order would impact the WorkSafe claim and is not certain about that. My apologies, Your Honour, to interrupt. [ 61 ] THE COURT: No. Well, sorry, if I am -- if we have that clear and I missed it, then I apologize and I appreciate your standing up, because there has been time that has passed. So, to be clear, then, you think that, likely, it would be better not for Ms.

Bangay to award it for risk that -- I mean I -- my intention was to make clear language saying that this is a measure and it is not in place of, and the law is clear that it is not that, but just as I understand, and I am not commenting on it, I am not critical of it, that you know ICBC takes a position with respect to whether -- you know, whether it will compensate for accelerated depreciation and that it separated the damages between the mischief claim and the operation of the vehicle claim. I do not want to create complexity, so -- [ 62 ] CNSL K.

COSTAIN: Yes, Your Honour -- [ 63 ] THE COURT: -- should I then -- [ 64 ] CNSL K. COSTAIN: -- with respect to the claim regarding the vehicle, the Bangay’s have indicated that they do wish to proceed -- [ 65 ] THE COURT: Yes. [ 66 ] CNSL K. COSTAIN: -- with that. [ 67 ] THE COURT: Yes. [ 68 ] CNSL K. COSTAIN: With respect to the claim regarding the loss of benefits, Ms. Bangay has indicated a concern -- [ 69 ] THE COURT: Okay. [ 70 ] CNSL K. COSTAIN: -- that that would interfere with the other claim. I -- certainly, in my practice I don't deal with that aspect of the law.

So, I don't know whether there would be an impact, but that is the concern and Ms. Bangay can confirm if she wishes, but my understanding is that there is that wish to withdraw that -- [ 71 ] THE COURT: Okay. [ 72 ] CNSL K. COSTAIN: -- application for restitution. [ 73 ] THE COURT: All right. Thank you for that. My comments should stand. I meant what I said, which is that too often we think of restitution where it is a measurable thing. There has been a broken TV or a damaged vehicle. Here, the claim of restitution is measurable.

I mean it is -- I accept what you have said in terms of you -- in one year the loss of $35,000 all that was sought were the very sort of fixed amounts with respect to pension contributions, benefit expenses, and loss of benefits. There is a basis for me to have awarded that, but I understand your position and understand the complexities of dealing with these processes. [ 74 ] Having reviewed what I have said, I will now speak to the sentence that I have decided upon.

With respect to, then, the jail sentence and the duration of the jail sentence, I will not sentence you to a jail sentence as high as the upper end of the submitted range of four years. That range is clearly supported by appellate authority. There are aspects in this crime that are similar to the case of Ahmed where the Court of Appeal upheld a sentence at five years. [ 75 ] There are ways to differentiate those in different respects. Here, there are multiple victims. Here, there are multiple weapons, but absent here is the significant aggravating feature of someone who is asleep.

In Ahmed , there was then clear premeditation, a victim who was asleep, the decision to boil the oil and use that as a weapon. Further, here and of significance, is the benefit of a guilty plea and the differentiated consideration of remorse on the facts of this case. [ 76 ] Here, also, there are significant Gladue considerations. The law is clear and it is more difficult to explain and for people to understand, it is not to suggest that there is any discount in the sentencing for people who are Indigenous. It is, instead, to view their moral culpability through the lens of the experience of Mr.

Marshall as an Indigenous person in the context with the sad history of Indigenous people and the experiences of Mr. Marshall and other people in the context of how he lived his childhood. Viewed through that lens, his culpability is different than someone who did not experience the same childhood and the same racism and the same complexity in his experience. [ 77 ] Having made those comments, I also find that I do not accept that the low end of the range sought by defence counsel, three years, is fit and appropriate. I do so with particular regard to the appellate authorities I have cited.

This is not the mere escalation of a bar fight. There is volatility here for one hour, the use of the car as a weapon multiple times, alighting from the vehicle and the use of a separate weapon. [ 78 ] It is not an exact mathematical exercise or scientific exercise, but in the end, I have decided that the appropriate jail sentence here is three-and-a-half years. That, in the language in terms of sentencing, it is three years and six months with credit for time served of two years and three months.

That leaves one-year-three-month new time or 15 months remaining in his sentence. [ 79 ] THE CLERK: May I just get for which count, Your Honour? [ 80 ] THE COURT: I will go through the counts. So --

[ 81 ] THE CLERK: Thank you. [ 82 ] THE COURT: -- his 15-month jail sentence will be followed by a period of probation, the duration of which will be for three years. There are various ancillary orders that I will speak to in a moment. The only significant difference with respect to the probation order is that, for the first 30 days of his probation, Mr. Marshall will be bound by a curfew from 8:00 p.m. to 5:00 a.m. The purpose of that curfew is principally to monitor and establish that Mr.

Marshall is residing somewhere other than Terrace and to give the further assurance to the victims that he is nowhere nearby; that I have established that only for the first 30 days is in the hopes and the expectation that, upon establishing himself in a community, he will remain there thereafter. For the full first year of his probation order, he will be required to report once per week in person unless excused from that for a specific purpose. [ 83 ] Turning, then, to the allotment, so with respect to the jail sentence, Count 1 is the sentence of 15 months followed by probation.

Counts 2 and 5 are 100 days in jail concurrent to Count 1. Count 7 and 9, which is the impaired operation and over 80, are 80 days concurrent to the other counts. [ 84 ] In terms of ancillary orders, there will be a sample of his DNA taken. It is primary on Count 1. He is in custody. It will be taken forthwith.

I mean, ordinarily, the taking of samples of DNA is secondary on Counts 2 and 5, and I would exercise my discretion in favour of it, but they need only take one sample at this point so the DNA order will follow just Count 1. [ 85 ] There is a s. 109 firearms prohibition on Count 1 for 10 years and, with respect to prohibited weapons, for life. [ 86 ] Do you need me to take you to the ancillary order section? [ 87 ] THE CLERK: Your Honour, can I just confirm, is that mandatory or discretionary, 109? [ 88 ] THE COURT: It is mandatory. [ 89 ] THE CLERK: Thank you. [ 90 ] THE COURT: It is a s. 109 prohibition. [ 91 ] THE CLERK: Thank you. [ 92 ] THE COURT: There will -- the driving prohibition that is sought, Ms.

Costain, at three years under s. 320.24, it is not mandatory at three years, it is -- there were submissions on it as two to three years? [ 93 ] CNSL K. COSTAIN: Yes, Your Honour, I am just -- [ 94 ] THE COURT: I just want to see that it is not mandatory. [ 95 ] CNSL K. COSTAIN: Certainly. [ 96 ] THE COURT: My intention is to -- I mean, obviously, if it is mandatory -- [ 97 ] CNSL K. COSTAIN: Your Honour, my understanding is that, in this case, the Crown did not rely on a notice to seek greater punishment or -- though there is a record -- [ 98 ] THE COURT: Yes. [ 99 ] CNSL K.

COSTAIN: -- we haven't relied on notice regarding that record. So, I believe it would not be mandatory. [ 100 ] THE COURT: Okay. There is a mandatory one, though, right? [ 101 ] CNSL K. COSTAIN: That's correct. [ 102 ] THE COURT: Okay. The driving prohibition will be for 18 months. [ 103 ] THE CLERK: Your Honour, is that on both Count 7 and 9? [ 104 ] THE COURT: Yes. [ 105 ] A restitution order will be made in the amount of $9,500 to -- and Ms. Costain, I think that I remember that -- I am not certain of this -- I do not think it is Mr. Marshall [sic, Mr. Bangay] that owned the vehicle. It was Mr.

Marshall's [sic] spouse, the mother. [ 106 ] CNSL K. COSTAIN: Yes, so not Mr. John Bangay -- [ 107 ] THE COURT: Sorry. [ 108 ] CNSL K. COSTAIN: -- but Debora -- [ 109 ] THE COURT: I apologize. [ 110 ] CNSL K. COSTAIN: -- and I can spell that -- [ 111 ] THE COURT: Oh, it is -- oh. [ 112 ] CNSL K. COSTAIN: -- based on the --

[ 113 ] THE COURT: It is Giese? [ 114 ] CNSL K. COSTAIN: Yes, G-i-e-s-e. [ 115 ] THE COURT: Sorry, it is there, okay. So that is her surname? [ 116 ] CNSL K. COSTAIN: That's -- that's my understanding. [ 117 ] THE COURT: All right.

So the $9,500, Madam Clerk, will be payable to Giese, G-i -- no, sorry, Debora, D-e-b-o-r-a, surname Giese, G-i-e-s-e, and he will be given five years to pay. [ 118 ] THE CLERK: I'm sorry, Your Honour, which count was that? [ 119 ] THE COURT: That is Count 5. [ 120 ] THE CLERK: Thank you. [ 121 ] THE COURT: Now, the order of probation follows all counts and will carry with it the following conditions. So it is a full three years. There are compulsory conditions for probation and peace bond. [ 122 ] So 2001 -- so, Mr. Marshall, these are the conditions you will need to abide by once you are released from jail.

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

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 123 ] 2002, you must have no contact or communication directly or indirectly with Belinda Bangay, that is spelled on the information; John Bangay, same spelling; Steven Branch -- [ 124 ] THE CLERK: Your Honour, I apologize, is John Bangay and Steven Branch in the information? [ 125 ] THE COURT: Yes, they are on Count 5.

So John, usual spelling, Bangay, B-a-n-g-a-y. [ 126 ] THE CLERK: Thank you. [ 127 ] THE COURT: Steven Branch, usual spelling, B-r-a-n-c-h -- [ 128 ] THE CLERK: Thank you. [ 129 ] THE COURT: -- and just out of an abundance of -- I will add Debora Giese, G-i-e-s-e, same spelling as the restitution order. [ 130 ] The exceptions are as follows: a modification to (c), as mandated or compelled in the context of any civil litigation or claims for compensation, but in any such circumstance, you must immediately file a copy of this order in any such civil litigation or related claim, notify your probation officer of the fact that you have been compelled to testify, and ensure in the context of any civil litigation that a sheriff is present and any such proceeding are aware of this order. [ 131 ] 2005-1, you must not go to or be within 500 metres any place of: (1) any place the same four list of people -- Madam Clerk -- lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 132 ] Then there will be -- let me see where the area restriction is. Okay, here I go. [ 133 ] 2302-2, you must not be within a 10-kilometre radius of the City of Terrace. The exceptions are as follows: (

a) with the prior written permission of your probation officer; such permission is to be given only for compelling reasons; (

b) to attend any court appearances and you must provide your probation officer with seven days' written notice in advance of your attendance within the prohibited area; (

c) in a moving vehicle on your way to some other place, but only as permitted by your probation officer; and standalone -- actually, Madam Clerk, we are going to -- it will be not within 10 kilometres of the City of Terrace and add, comma, "And you shall not travel west of Smithers." [ 134 ] Okay, next, 2103, you must report by telephone to a probation officer in Terrace - we will insert the phone number - prior to your departure from your jail sentence.

After that, you must report as directed by your officer. [ 135 ] Madam Clerk, instead of saying, "prior to departure from your jail sentence," "prior to your departure from the correctional centre where you are released from." So when it says, "After that, you must report as directed by your officer," comma, "For the first year of this probation order, such reporting shall not be less than once per week in person unless reporting in person is practically impossible due to the location in which you reside." [ 136 ] 2201, when first reporting to your probation officer, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without prior written permission from your officer. [ 137 ] 2209-1, for the first 30 days of this probation order: (1) you must obey a curfew by being inside your residence or on its lot in which it is situate, but at any such time within line of sight of the front door to such residence, between 8:00 p.m. and 5:00 a.m. every day; (2) you must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends or calls to check on you during the curfew; (3) you may be away from your residence during the curfew with the prior permission of your probation officer; such permission is to be given, and delete "only," for employment and other compelling reasons.

[ 138 ] 2209-1-A, you may also be away from your residence during the curfew hours: (

a) while at or going directly to or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your probation officer with proof of your attendance at the facility. [ 139 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. [ 140 ] 2610, you must not possess directly or indirectly any weapon as defined by the Criminal Code , including: (

a) firearms and ammunition; (

b) crossbows, prohibited or restricted weapons or devices, or explosive substances; (

c) anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; (

d) any imitation of all the above, including any compressed airguns or BB/pellet guns; or (

e) any related authorizations, licences, and registration certificates, and you must not apply for any of these. [ 141 ] 2616, you must not possess any knife outside your residence, except for the immediate preparation or eating of food. The exceptions are as follows: (

a) while on your property; (

b) as worded, same as while at -- so while at work or going directly to and from work; and (

c) with the prior written permission of your probation officer. [ 142 ] THE CLERK: Your Honour, do you want the code for carrying the permission or delete it? [ 143 ] THE COURT: 2624-1, you must not occupy the driver's seat of any motor vehicle. The exceptions are as follows: (

a) while at work or going directly to or from work; if asked, you must provide your probation officer with the details of your employment including the hours and location; (

b) when going directly to or returning directly from a healthcare facility because of a medical emergency; if asked, you must provide your probation officer with proof of your attendance at the facility; (

c) with the prior permission of your probation officer and such permission should be granted with particular regard to residing in a location where it is not possible to attend to your daily needs without the use of the vehicle, but such permission shall be given for you to attend to such things during specified times. [ 144 ] I did not explain this in the reasoning, but it is this, the duration of the prohibition on driving was sought by Crown was three years. The driving -- the use of a vehicle as a weapon in the context of impaired driving is amongst the most serious forms of impaired driving.

The balance here, though, is that the three-year driving prohibition, how it would -- how it could interfere with re-employment and the balance here is struck, then, by limiting the duration of the absolute prohibition and then, at the expiry of the shorter prohibition at 18 months, permitting him to drive for work, to and from work, and while at work, and if he is living in a remote location, then he can consult the probation officer and say, "Once a week, I need to go in and get my groceries, et cetera, if it not feasible to do so without the use of a motor vehicle and otherwise for attendance at appointments, et cetera." [ 145 ] THE CLERK: I apologize, but may I get the

section that the driving prohibition is pursuant to? [ 146 ] THE COURT: It is 320.24. [ 147 ] THE CLERK: Is that sub (1)? [ 148 ] THE COURT: I do not -- you can look up that, Ms. Costain? Thank you. [ 149 ] CNSL K. COSTAIN: Pursuant -- [ 150 ] THE CLERK: Or sub (1), sub (2). [ 151 ] CNSL K. COSTAIN: Your Honour, that would be 320.24(2)(a). [ 152 ] THE CLERK: Thank you. [ 153 ] THE COURT: All right, thank you. [ 154 ] I will impose a victim fine surcharge on Count 1 and Count 5. I will give him two full years to pay. I will waive it on Count 2 -- on all remaining counts. [ 155 ] All right, Ms.

Costain, is there anything that I have missed? [ 156 ] CNSL K. COSTAIN: Your Honour, I believe that covered all the ancillary orders sought. I noted that, in the PSR, there had been a suggestion of not to be found intoxicated outside of his residence. I do not know if Your Honour wished to have any -- or restrictions on alcohol consumption? [ 157 ] THE COURT: I agree. That is just missed, and it should be there. [ 158 ] So add, Madam Clerk, "You are not to be found outside of your residence under the influence of drugs or alcohol except those prescribed by a physician." [ 159 ] Ms.

Turton, in terms of the probation order, is there anything that requires attention? [ 160 ] CNSL A. TURTON: No, I don't think so, Your Honour. I would just ask if the clerk could email me a copy of Your Honour's -- the terms of the probation, please? [ 161 ] THE COURT: Yes. [ 162 ] CNSL A. TURTON: Thank you.

[ 163 ] THE CLERK: Ms. Turton, may I just get your email? I believe I do have it, but just in the event -- [ 164 ] CNSL A. TURTON: It is just lawoffice@haidagwaii.ca. [ 165 ] THE COURT: So, Mr. Marshall, do you understand those conditions? [ 166 ] THE ACCUSED: Yes, sir. [ 167 ] THE COURT: All right. They are all important, but there are a few that I want to explain to you. So you are not going to -- part of your remorse, and you acknowledged this, you were prepared not to come back to Terrace and I think that is significant in terms of the fear, in particular, that Ms.

Bangay feels and that she knows that she is not going to encounter you here. I broadened that to say you are not going west of Smithers without permission from the probation officer. So that at least, even if you are passing through the area on route to somewhere else, that the probation officer is made aware of that and then Victim Services can make the victims aware of that. [ 168 ] My sense, and you have indicated this is that you are looking east with respect to employment opportunities rather than near here.

You are going to need to be in consultation with your probation officer in terms of where it is that you are living, et cetera, because you need the probation officer's permission, but at the very least, you are not living -- you are not going to be in Terrace other than in those limited exceptions for the duration, obviously, of your jail sentence and for the three years that follow. [ 169 ] In terms of the restraints on contact, there is no contact direct or indirect whatsoever.

The only contemplated exception is, just so it is made clear, if you are involved in litigation or in the context of the claims, you are contacted by an agency such as Workers' Compensation Board, et cetera, you are being required to give a statement, or what have you.

When you are compelled to do so is not a breach or to suggest indirect communication, but again, if you were required to give evidence or compelled to give -- testify in some civil litigation proceeding, you have to let your probation officer know about that and certainly, then, if you are to be in a courthouse dealing with such matters, you let the sheriffs know so they are just aware of the fact -- of the nature of the case, and if there is sort of a layer of criminality that extends beyond impaired driving and operation of a motor vehicle in a manner that was dangerous to the public peace, that it includes crimes of violence. [ 170 ] Then, with respect to the driving prohibition and if you followed along, I have imposed a driving prohibition as a sentence, but then -- and I would have gone to the three years, but I did not want the restraint on driving to interfere with your ability to find employment.

I am just thinking of the nature of work in a place like Fort McMurray, et cetera, and making your way into a camp bus, or what have you, or being able to operate a vehicle. I think you know this, the reality is, is that I have the jurisdiction to prohibit you from driving.

There is a separate independent jurisdiction of the Superintendent of Motor Vehicles to restrict the issuance of a driver's licence and that is a separate process that needs to be undertaken, but I did not want my decision, necessarily, to interfere with how and where you are driving. [ 171 ] So I will establish this with you, you understand all those conditions? [ 172 ] THE ACCUSED: I do. [ 173 ] THE COURT: You understand that if you are in breach of those conditions that you can be arrested with respect to the breach, taken back into custody, and if Crown was to show cause there is a reason for you to remain in custody, you would stay there until those new charges are dealt with.

Do you understand that? [ 174 ] THE ACCUSED: I do. [ 175 ] THE COURT: Do you understand that a breach of the probation order is itself a separate criminal charge, you understand that? [ 176 ] THE ACCUSED: I do. [ 177 ] THE COURT: Madam Clerk, I am satisfied Mr. Marshall understands the conditions of his probation order and the consequences of a breach thereof. In the circumstances, I dispense with the need for him to appear before a registry and be read into those documents and affix a signature to that document. [ 178 ] Mr. Marshall, you do not need a copy of that document where you are.

They will likely give you a copy of that document when you are released. Otherwise, we are going to email a copy of that document to your counsel, Ms. Turton. Once you are released, you are not required to have a copy of that document, but it is worthwhile to have it just to make sure you are clear in your understanding of what the rules are. [ 179 ] I wanted to comment in terms of the restraint on your drinking, it is not meant to criminalize your alcoholism. This court views a substance abuse disorder as a health issue.

It is not a crime to be addicted to something, but in this circumstance when you are out in a public place under the influence, there was that loss of impulse control and the crimes that were committed. So, it is to prevent any further future offence from happening. I will say this, though, sir, and I understand that you have had counselling in the past, my sense, sir, by looking at your criminal record is, and you acknowledge this, you have had difficulties with drinking. You have been drinking for a long time. [ 180 ] You are 56 years old, or thereabouts.

You may feel old, but certainly in the eyes of this court, you are still relatively young. Life is long and there is a lot of living ahead of you. My strongest words of encouragement to you, sir, is to find a way to live your life knowing that you are an alcoholic, if that is the conclusion, and find a way to live with that without using alcohol to manage the emotions you have about your life's experiences. [ 181 ] I also encourage you, sir, to continue to do what you are doing there at PGRCC in terms of exploring your Indigenous identity and your background.

I do not know the Tlingit people as well as I do certain people of the Northwest. I know something of Tlingit culture. I lived in the Yukon for a period of time, but I am quite confident that their teachings would be inconsistent with using alcohol as a way of

understanding the trauma that you have endured, the sadness you have about your childhood, and having grown up in an environment that did not celebrate and even understand or even acknowledge your Indigenous heritage.

That is a hard thing to deal with. [ 182 ] You need to find a way to live your life understanding that and I have a sense of you, sir, obviously, in the success you have had in your employment life and it is regrettable what happened to you in terms of your experiences losing your work in Prince Rupert, but underlying that likely is a sense of pride and self-esteem in being a hard worker and making your way in the world and I encourage you to find your way back to that.

Do not be discouraged by having found yourself in the difficult circumstances you were in in the two years leading up to this offence. [ 183 ] I sense of you that you know that there is a way forward. There is a strength and a resilience in people and, in particular, Indigenous people and there is other Indigenous people who have had experiences similar to your own. There is a strength in that sense of community and finding your way forward. I do wish you well in your rehabilitation and I want to acknowledge what was the clear expression of remorse when you spoke last that you were here for sentencing, all right?

Before I say my final words to you, I want to then turn and I will speak to the victims that are here and present. [ 184 ] I want to restate what I said to your family, Mr. Bangay and Ms. Bangay. It is not for the court to try and hurry any survivor of trauma in their recovery. That is your healing path and journey in a timeline of your own making. Mr. Bangay, I take it you are retired and not working and so your professional life is behind you, but your role as a father never ends and that was very clear in the victim impact statement that you provided.

So it will, I am sure, as with all parents, remain your focus to continue to be a father and find ways to be relevant and support your daughter. [ 185 ] Ms. Bangay, take the time that you need and absolutely understandable if your decision is not to return to the way that you were serving your community before, but I am seeing familiar faces behind you and I am presuming them to be victim support workers.

I am sure they would agree with me that your writing about your experiences and your articulation of the experience, it makes it clear to me that you have still so much to contribute to a community and it is what I was left with thinking about this morning is, perhaps that is a way to find your way back to the service that you so enjoyed, clearly, otherwise you would not have done what you did in your work, and I just -- I wish you well in that journey and the very best in that journey and everything that lays ahead. [ 186 ] Mr. Marshall, your sentence continues today beyond the time you have served.

I do so, as well, I wish you well in the work ahead. [ 187 ] Those are my decisions -- that is my decision on sentence. There are some outstanding counts, correct? [ 188 ] CNSL K. COSTAIN: Yes, Your Honour, I would direct a stay of proceedings to Count 3, 4, 6, and 8 on the information. [ 189 ] THE COURT: Very well, thank you. _____________________________ D. Stewart, PCJ Provincial Court of British Columbia