R. v. Needlay, 2022 BCPC 173

Citation: R. v. Needlay 2022 BCPC 173 Date: 20220624 File No: 12330-5-KC Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JACKIE BRIAN NEEDLAY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. A. GOLINSKY Counsel for the Crown: P. Swartz Counsel for the Defendant: W. Perrin Place of Hearing: Fort Nelson , B.C. Date of Hearing: March 23, 2022 Date of Judgment: June 24, 2022

[ 1 ] On Thursday, October 10th, and in the early morning hours of Friday, October 11th, 2019, Brian Jackie Needlay and Annie Berg were socializing and drinking alcohol with Mr. Needlay’s sister and brother-in-law at Mr. Needlay’s home in Fontas, British Columbia. Fontas is an isolated community in Northeast British Columbia. Mr. Needlay and Ms. Berg had been in an intimate relationship for approximately 18 months and Ms. Berg frequently stayed with Mr. Needlay in Fontas. [ 2 ] Neither Mr. Needlay nor Ms. Berg recall what happened in the early morning hours of October 11, 2019. [ 3 ] Mr.

Needlay’s sister and brother-in-law, who had gone to bed and were sleeping in a nearby cabin, heard gunshots in the middle of the night, but did not immediately investigate. When they went down to Mr. Needlay’s cabin the next morning, they found Mr. Needlay trying to comfort a badly injured Ms. Berg while also making a call to 911. [ 4 ] Ms. Berg had multiple broken bones and lacerations, but no gunshot wounds. She was taken by RCMP helicopter to a nearby hospital and then ultimately to a larger centre for medical care. [ 5 ] The RCMP investigation located a firearm with DNA evidence on it indicating that Ms.

Berg had been assaulted with the butt end of that firearm. All of the circumstantial evidence led the RCMP to conclude that Mr. Needlay had assaulted Ms. Berg using the firearm as a blunt weapon causing significant injuries to her. [ 6 ] Mr. Needlay has pleaded guilty to assaulting Ms. Berg with a weapon, and the Crown submits that the appropriate sentence is a one-year jail sentence with probation and ancillary orders. Mr. Needlay submits that a jail sentence served in the community through a conditional sentence order plus probation and ancillary orders is the appropriate sentence.

ISSUES [ 7 ] The broad issue for the court to determine is to determine the fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence, and the particular circumstances of Mr. Needlay. In this particular case, the ultimate issue comes down to whether Mr. Needlay should be required to serve his sentence in jail or if a sentence served in the community would be an appropriate sentence. Criminal Code Of Canada [ 8 ]

Section 718 of the Criminal Code sets out the fundamental purposes of sentencing which is to contribute, along with crime prevention initiatives, respect for the law and maintenance of a just, peaceful, and safe society by imposing just sanctions to have one or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender; (

e) reparation to victims; and, (

f) promotion of a sense of responsibility in the offender. [ 9 ]

Section 718.1 of the Criminal Code codifies the proportionality principle which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to the victim; and, (

b) the harm or likely harm to society and its values. [ 10 ] The other important sentencing considerations are set out in s. 718.2 which includes that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Of particular note, Parliament has enacted s. 718.2(a)(ii) which states that it is an aggravating factor if “in committing the offence, abused the offender’s intimate partner.” [ 11 ]

Section 718.2(

b) codifies the parity principle which holds that sentences should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court held the “parity principle … means that any disparity between sanctions for different offenders needs to be justified.” [ 12 ] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds that an offender should not be deprived of liberty if less restrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders.

Supreme Court of Canada [ 13 ] The Supreme Court of Canada has repeatedly instructed courts to recognize the over-incarceration of Indigenous offenders and the unduly harsh impact incarceration has had on the Indigenous population of Canada and can have on an individual Indigenous offender. [ 14 ] Since September of 2019, under ss. 718.04 and 718.201, courts are also statutorily mandated to give particular attention to the circumstances of Indigenous female victims where they are victims of intimate partner violence.

I find that this imposes a requirement of the court to recognize that it is a sad reality in Canada today that Indigenous females can be particularly vulnerable and violence against them must be strongly denounced and sentences must be crafted with a mind to affording them protection from further violence. The Current Context [ 15 ] When imposing this sentence, it is important for the court to be able to craft a sentence that does both of these things: 1. Give consideration to the unique factors of our colonial history and Mr. Needlay’s Indigenous identity; and, 2. Firmly denounce the violence against Ms.

Berg, who is particularly vulnerable in light of our colonial history and her Indigenous identity, and deter others from committing similar offences.

[ 16 ] In this context, and in order to decide whether I should impose a jail sentence or a conditional discharge sentence, I need to consider the following seven questions: 1. What was the nature of the assault? 2. What was the impact on Ms. Berg? 3. What are Mr. Needlay’s particular circumstances? 4. In this case, what is the interplay between mental illness and moral culpability? 5. In this case, what is the interplay between a conditional sentence order and Mr. Needlay’s Gladue factors? 6. What are the specific principles of sentencing for intimate partner violence that apply here? 7.

Are there collateral consequences that should affect the sentence? [ 17 ] For the reasons I will describe below, I have concluded that the appropriate sentence is a jail sentence to be served in the community followed by a term of probation. [ 18 ] Mr. Needlay, you will not be going to jail today. [ 19 ] THE ACCUSED: Thank you, Your Honour. Thank you. 1. What Was The Nature Of The Assault? [ 20 ] Mr. Needlay and Ms. Berg and Mr.

Needlay’s parents were living in Fontas, a tiny and remote traditional place of settlement located on the riverbank of the Fontas River in Northeast British Columbia accessible only by snowmobile, ATV, boat, or helicopter. [ 21 ] Before resettlement by the Department of Indian Affairs in the early and mid 1900’s, many families lived in this beautiful area, only going down to the Old Fort to trade furs and get supplies. Fontas has no roads or services. There are still a few cabins in Fontas that people will visit, but the Needlays are the only full-time residents. Mr. Needlay lives in an older log home, which Ms.

Berg had been living with him in. Mr. Needlay’s elderly parents live in a newer home that he helped build. [ 22 ] On October 11th of 2019, Mr. Needlay’s sister and brother-in-law were visiting and the four were drinking and socializing in Mr. Needlay’s cabin. At some point in the night, Mr. Needlay got angry at Ms. Berg and he grabbed her and dragged her outside the residence. His sister and brother-in-law decided it was time to leave so they walked up to the other cabin where they were staying with the parents. [ 23 ] Later, around 3:00 a.m. on October 12, Mr. Needlay’s sister and brother-in-law heard gunshots.

In the morning, they went down to the cabin to see how everyone was. They walked into Mr. Needlay’s cabin and saw Ms. Berg laying on the bed bleeding and badly injured. Mr. Needlay was attempting to comfort Ms. Berg while also trying to call 911. [ 24 ] Ms. Berg travelled by helicopter to the Fort Nelson Hospital for emergency treatment, then to Prince George Hospital for further care. [ 25 ] Ms. Berg has no recollection of how she was injured. [ 26 ] Mr. Needlay also has no recollection of how Ms. Berg was injured. [ 27 ] The RCMP located a rifle in Mr. Needlay’s cabin.

There was no evidence of what happened when the shots were fired, either who discharged the rifle or in what direction. However, the rifle had Ms. Berg’s hair and blood imbedded on it. After considering Ms. Berg’s injuries and the other evidence, there is no other conclusion to draw except that Mr. Needlay assaulted Ms. Berg, beating her repeatedly with that rifle. 2. What Was The Impact On Ms. Berg? The Physical Impact [ 28 ] Mr. Needlay injured Ms. Berg in the following ways: 1.

Injuries to her face and head : fractured nasal bone, fractured maxillary, which is the upper jaw, bruising on her face in multiple areas, avulsion of two upper incisors in right upper jaw, with one tooth missing and the other one still attached to the gum covering the exposed dental root, scalp lacerations, and a very deep lower lip laceration with exposed orbicularis oris muscle. 2.

Injuries to her torso, arms and hands : an open left distal humerus fracture (by the elbow), a laceration on her left arm approximately six centimetres deep all the way to the bone, a laceration two centimetres in length on the inside of her left arm near the elbow, two fractures in her left hand, a large bruise 10-centimetre-sized on her right shoulder, and a right posterior second rib fracture. 3. Injuries to her legs : bruising to the left outer and inner thigh, and fractured left tibia and fibula that punctured the skin and caused a laceration. [ 29 ] Ms.

Berg’s emergency treatment included orthopaedic surgery on her left leg, left elbow, and left hand and dental extractions and jaw wiring. She spent two weeks in the hospital.

[ 30 ] Nineteen months after the assault (as of May 2021 which was the last medical information available to the court) Ms. Berg’s injuries in her left leg, tibia, had not yet healed. The orthopaedic appliances and screws had broken in the fall of 2020 and the fracture was non-united. She had been to the local medical centre more than 10 times for follow-up care and she was still having troubles walking and was using a cane. Other Impacts On Ms. Berg [ 31 ] Ms. Berg did not provide the Crown with a victim impact statement.

There can be many reasons why an injured party does not make a victim impact statement and I make no inferences regarding its absence. During the course of the prosecution, however, Mr. Swartz, the Crown counsel with conduct of this prosecution, did have several conversations with Ms. Berg and her sister, and I rely upon those submissions as I am permitted to do so pursuant to s. 723 of the Criminal Code . [ 32 ] Ms. Berg is an Indigenous woman. Much of her history is not known to Mr. Swartz or to the court. Mr. Swartz indicated he believes that she identifies as a member of the Fort Nelson First Nation.

She spent most of her life living in and around Fort Nelson. She also lived in Fort Liard in the Northwest Territories as her family has ties to other communities further north. Her sister recounted to Mr. Swartz that there was use and abuse of alcohol in their home as they grew up and that their father was violent to their mother. [ 33 ] This was not the first intimate partner violence Ms. Berg had experienced and she reported to Mr. Swartz that alcohol abuse and violence has been prevalent through her life. She had been in an intimate relationship with Mr.

Needlay for about 18 months and one of the things she really enjoyed about the friendship was the opportunity to live with Mr. Needlay and his parents in Fontas. She said that there was usually no drinking in Fontas and she was able to get away from the troubles that could be found in the town to lead a simpler, safer, and more traditional life. She did not recount any prior incidents of violence between her and Mr. Needlay before this incident. Although she did not use these specific words, Mr. Swartz was left with the impression that Ms. Berg found Fontas to be something of a safe haven. She did tell Mr.

Swartz that she did not believe that she will ever be able to trust Mr. Needlay enough to go back out to Fontas again. [ 34 ] Mr. Needlay had initially elected to have a trial and, as the summer of 2021 trial dates approached, Ms. Berg was reluctant, but willing to testify. She expressed to Mr. Swartz on more than one occasion that one of the reasons she was reluctant to testify was that she was concerned about the impact a conviction and, in particular, incarceration would have on Mr. Needlay. She knew that he suffered from a mental illness and that he has lived remotely in Fontas almost all of his life.

She also told Mr. Swartz that she is not entirely opposed to having contact again with Mr. Needlay, although her family does not encourage this. When Mr. Needlay chose to plead guilty rather than have a trial, Ms. Berg was greatly relieved that she would not have to testify. 3. What Are Mr. Needlay's Particular Circumstances? [ 35 ] In addition to the submissions of counsel, the court had the benefit of a presentence report, a forensic psychiatric report, and a Gladue report. [ 36 ] Mr.

Needlay is a member of the Fort Nelson First Nation and resides with and takes care of his father and mother in the isolated community of Fontas, B.C. He speaks English and Dene, or Slavey. Both of his parents are well-known elders who also grew up in the community of Fontas. Mr. Needlay’s grandparents, Eddie and Eva Needlay, are remembered and respected for being the only family that stayed in Fontas after the Department of Indian Affairs relocated the rest of the community to the Fort Nelson Indian Reserve. [ 37 ] Mr. Needlay’s mother attended residential school in her youth for a short time.

Although she would have known English as a younger person, she has lost that language and now only speaks Slavey. Mr. Needlay’s father did not attend residential school. He said that they live a traditional kind of life and that Mr. Needlay helps him and his wife to chop wood for heat and cooking, hunt and fish, gather snow to melt for water in the winter, and go to town for supplies that they need to live in Fontas. Some of Mr. Needlay’s siblings live in Fort Nelson and they help care for their parents as needed. His sister, Sharon, has been particularly supportive to Mr. Needlay and his parents. [ 38 ] Mr.

Needlay lived with an aunt in Fort Nelson to go to school until he was about 13. He denies experiencing any form of childhood violence or neglect. He and his siblings grew up speaking their language and learning the traditions of hunting, fishing, and trapping, which he still does. Aside from one brief period of tree-planting, Mr. Needlay has not had formal employment and relies upon a disability pension for his income. [ 39 ] While in grade eight, after a suicide attempt and other behaviours, Mr. Needlay was diagnosed with schizophrenia, an illness that he still suffers from.

He is now on an injectable medication that is administered in the Fort Nelson Community Health Centre once a month. He advises that this successfully manages his symptoms. He has been told that he should not drink while on this medication. He says that he starts to feel anxious and upset nearer to the end of the month as the effects of the injection start to wane. Mr. Needlay advises that he was near the end of the monthly injection regime and this is how he was feeling at the time of the assault. [ 40 ] For a short time in his early 20s, Mr. Needlay used alcohol regularly. Mr.

Needlay has three criminal convictions, each entered in December of 1997 when he was 20 years old. The convictions are for attempted theft, mischief, and pointing a firearm. He received a one-day jail sentence for the theft and mischief each and a $200 fine for the offence of pointing a firearm. He says that more recently, and prior to the assault, he drank hard alcohol about once a month. [ 41 ] Mr. Needlay was sober for about five years before he met Ms. Berg, but he says that they did like to drink together occasionally. He said that there was never problems like this before.

He admits to drinking in excess the night of the assault, but he cannot explain why the effects were so different on this night. He has not had a drink since. Since the assault, he has built a strong rapport with a local counsellor and attends weekly counselling, in person or by cellphone, and has made an application to attend the North Winds Healing Centre. Despite living remotely and having limited access to resources, he has still been able to take steps to begin to examine the issues underlying his violent behaviour in October of 2019. [ 42 ] Mr. Needlay’s sister describes Mr.

Needlay as somewhat simple and needing a lot of direction to accomplish tasks. His father

describes that he and his wife depend on their son and would not be able to continue to live their traditional life if not for Mr. Needlay. Like Ms. Berg, his father also worries about the impact incarceration would have on Mr. Needlay, stating that it would be particularly difficult on him as he is so used to remote living. [ 43 ] Mr. Needlay states the he feels horrible about what he did. Dr. Sirkia, who wrote the forensic psychiatric report, observed that Mr. Needlay was saddened by what happened and disconcerted that he had perpetrated such violence when he is unable to recall doing so. Mr.

Needlay told the doctor that he would never want to hurt anyone, especially someone he loved. [ 44 ] It was difficult for Mr. Needlay to come to terms with the fact that he was responsible for injuring Ms. Berg, particularly because he has no memory of what happened. Over time, he came to accept that it must have been him and he has taken steps such as stopping drinking alcohol and counselling. Forensic Psychiatric Report [ 45 ] Dr. Sirkia conducted a risk assessment and concluded that Mr. Needlay’s risk for interpersonal violent reoffending is in the low range and warrants low prioritization. Mr.

Needlay presents with mental health issues that may have implications if he is not compliant with his medication regime. Dr. Sirkia suggests that the primary focus of treatment for Mr. Needlay should be maintaining his mental health and monitoring his alcohol consumption. Gladue Report [ 46 ] In addition to the information summarized above about Mr. Needlay, the Gladue report provided some useful information about the history of the Fort Nelson First Nation and Fontas, in particular. [ 47 ] The Fort Nelson First Nation is one of six nations that are signatories to Treaty 8.

The Fort Nelson Slavey entered into Treaty 8 on August 15, 1910. Under this treaty, they claim the rights and privileges including, amongst others, “access to and benefit of the resources within their traditional territory for so long as the sun shines, the grass grows, and the rivers flow.” The Nation has several staffed departments, including health, justice, and family. [ 48 ] The report reveals that, long ago, First Nations people from Fontas would travel by dog team, horseback, canoe, and riverboat to and from Fort Nelson. The community still remains largely isolated.

The Needlay family are recognized as the only family that stayed at Fontas when everyone else was relocated. Mr. Needlay and his parents are the only remaining full-time residents. [ 49 ] The effects of relocation on the Fontas community were no doubt profound.

The Royal Commission on Aboriginal Peoples , (https://www.bac-lac.gc.ca/eng/discover/aboriginal-heritage/royal-commission-aboriginal-peoples/Pages/final-report.aspx, RRCAP 1.11, accessed June 22, 2022) states: We are troubled by the way relocations may have contributed to the general malaise gripping so many Aboriginal communities and to the incidence of violence, directed outward and inward. [ 50 ] The report goes on to say: Governments saw relocation as providing an apparent solution for a number of specific problems.

As we show in this chapter, government administrators saw Aboriginal people as unsophisticated, poor, outside modern society and generally incapable of making the right choices. Confronted with the enormous task of adapting to 'modern' society, they faced numerous problems that government believed could be solved only with government assistance. [ 51 ] The Royal Commission further says: Justifying its actions by this attitude of paternalism, Canada used its power in an arbitrary manner. Decisions were made with little or no consultation. Communities were relocated on short notice.

People’s entire lives were disrupted if governments believed it was in their best interests. [ 52 ] I pause to state that, even though the Needlay family did not relocate, there is no doubt that the relocation of the rest of their community and the resulting isolation and separation would have had a negative effect on the Needlay family. This would include severely restricting Mr. Needlay’s ability to rely upon others to provide physical and social support to his parents and his parents’ ability to obtain consistent and professional support for their son.

It is reasonable to conclude that this isolation contributed to a lack of a coherent long-term plan to assist Mr. Needlay with his mental health and substance abuse issues. 4. What Is The Interplay Between Mental Illness And Mr. Needlay's Moral Culpability? [ 53 ] In R. v. Milne , 2021 BCCA 166 , at paragraph 45 , Madam Justice Dickson of the B.C. Court of Appeal stated that: [45] Cases involving mental illness are inevitably and intensely fact-driven. While the presence of mental illness at the time an offence is committed is part of the relevant context, it is not automatically a mitigating factor.

Rather, in each case, the judge must make a determination based on the whole of evidence on whether, and, if so, to what extent, the mental illness contributed to the criminal conduct and if it diminished the offender’s moral culpability: Badhesa at paras. 35, 43–44; Pond at para. 38. [ 54 ] And at paragraph 43 of Badhesa , 2019 BCCA 70 ,: [43] Cases involving mental illness and intoxication in combination are, of course, intensely fact-driven.

Detailed and specific medical evidence is essential to a proper understanding of their relationship in a particular case, if any, as well as their impact on the offender’s moral culpability. Generalizations are insufficient: Friesen at para. 25. … [ 55 ] In the case here, Mr. Needlay self reports that, at the time of the assault, the mitigating effects of his medication were dwindling.

He suggests to the court that this, combined with the evidence that he had consumed alcohol, should lead the court to find that he has adiminished moral culpability. [56] There is no actual evidence before the court that this should be the case. There is evidence that Mr. Needlay should not combinehis medication with alcohol and that doing so may increase his risk of offending, but I do not find that there is “detailed and specificmedical evidence” available to the court to understand their relationship and the resulting impact on his moral culpability. 5.

What Is The Particular Interplay Between A Conditional Sentence And Mr. Needlay's Gladue Factors? [57] The process for sentencing Indigenous offenders was articulated by the Supreme Court of Canada in the cases of R. v. Gladue, (SCC), and restated in Ipeelee. [58] Judge Malfair in R. v.

Zaworski, 2020 BCPC 46, succinctly articulated the process a sentencing judge must undertake starting atparagraph 72, where she stated: [72] As explained by Justice LeBel in Ipeelee, the law requires that a sentencing judge engage a different process for arriving at a fitsentence where the offender is aboriginal, not necessarily impose a different sentence.

Section 718.2(

e) of the Criminal Code does notrequire an automatic reduction of a sentence or warranted period of incarceration simply because the offender is aboriginal: Ipeelee atparagraph 71. Rather, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schoolsand how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates ofsubstance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.

These matters, on their own, do notnecessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding andevaluating the case-specific information presented by counsel: R. v. Ipeelee, paragraph 60. [73] 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 beforethe courts; and 2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection. [74] Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence: Ipeelee at paragraph 72. Systemicand background factors are relevant to the extent that they may bear on the moral culpability of the accused, while the types ofappropriate sanctions may be relevant to the effectiveness of a proposed sentence. The seriousness of the offence itself does not relievethe court of its duty to consider s. 718.1(

e) of the Code when sentencing an aboriginal offender. [59] In the case of R. v. Wells, 2000 SCC 10, Justice Iacobucci of the Supreme Court considered the interplay of the principles foundin Gladue with those found in R. v. Proulx, 2000 SCC 5. The court first reminded us that a conditional sentence may be reasonable incircumstances where deterrence and denunciation are paramount considerations, but this will depend upon the severity of the conditionsimposed.

Justice Iacobucci clarified that while a conditional sentence is “generally better suited to achieve the restorative objectives ofrehabilitation, reparations, and promotion of a sense of responsibility in the offender”, the objectives of deterrence and denunciation canalso be “well served with a conditional sentence” (para 32).

It also noted that “certain conditions can create more onerous circumstancesthan those associated with incarceration” (para 32). [60] Specifically, at paragraph 33 through 35, Justice Iacobucci stated: 33 The amount of denunciation and deterrence provided by a conditional sentence varies depending on the nature of the conditionsimposed and the duration of the sentence.

Since the imposition of any sentence is determined on an individual basis, each conditionalsentence needs to be crafted with attention to the particular circumstances of the offence, offender, and the community in which theoffence took place (see M. (C.A.), supra, per Lamer C.J., at para. 92).

Consequently, conditions will vary according to these factors withit being generally true that “the more serious the offence and the greater the need for denunciation, the longer and more onerous theconditional sentence should be” (Proulx, at para. 106). 34 Nevertheless, Lamer C.J. pointed out that “there may be certain circumstances in which the need for denunciation [or deterrence]is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct”(Proulx, at para. 106).

He further stated (at paras. 114 and 116): This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditionalsentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance,depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender andthe community in which the conditional sentence is to be served.

Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence,whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fitsentence. As La Forest J. stated in R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 329 “[i]n a rational system ofsentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of thecrime and the circumstances of the offender”.

There is no easy test or formula that the judge can apply in weighing these factors. Muchwill depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in makingthese determinations pursuant to s. 718.3. 35 Therefore, depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstanceswhere deterrence and denunciation are paramount considerations.

Ultimately, however, the determination of the availability of aconditional sentence depends upon the sentencing judge’s assessment of the specific circumstances of the case, including a consideration

of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity toproperly reflect society’s condemnation. [61] Justice Iacobucci reminded us of the holistic analysis described in Gladue, and then continues at paragraphs 49 and 50 to state: 49 I would like to add at this point that the reasons in Gladue, supra, do not foreclose the possibility that, in the appropriatecircumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice, notwithstanding that an aboriginaloffender has committed a serious crime. As was concluded in Gladue, at para. 81, the remedial purpose of s. 718.2(

e) directs thesentencing judge not only to take into account the unique circumstances of aboriginal offenders, but also to appreciate relevant culturaldifferences in terms of the objectives of the sentencing process: The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in thecircumstances. There is no single test that a judge can apply in order to determine the sentence.

The sentencing judge is required to takeinto account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of thedifficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstancesin light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge muststrive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have beenprovided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration whichare appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing.

Inthis way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. 50 The generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practicalmatter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle ofuniversal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.

In some cases, it maybe that these circumstances include evidence of the community’s decision to address criminal activity associated with social problems,such as sexual assault, in a manner that emphasizes the goal of restorative justice, notwithstanding the serious nature of the offences inquestion. 6. What Are The Specific Principles Of Sentencing For Intimate Partner Violence That Apply Here? [62]

Section 718.201 states that: A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increasedvulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. [63] Courts, unfortunately, see cases about intimate partner violence all too frequently. Countless sentencing courts over the yearshave reinforced the importance of balancing the principle of rehabilitation with the equally important principles of general deterrence anddenunciation.

As the violence and vulnerability of the victim increases, so, too, should the principles of general deterrence anddenunciation take an increased role. [64] In R. v. Tulk, (NL SC), the offender was sentenced to 90 days for assault on his spouse, 90 days for unlawfulconfinement, and 60 days for a secondary assault, all to be served concurrently and intermittently with 18 months’ probation andancillary orders to follow. Justice Whalen set out the following non-exhaustive list of factors a sentencing judge ought to consider in anintimate partner assault case at para 32: (

a) How violent was the assault or what degree of force was used? (

b) Was a weapon involved? (

c) Were there serious or any lasting injuries or any injuries? (

d) For what length of time did the assault continue? (

e) Was this an isolated incident? [65] I would add to this last: (

f) Did the victim have increased vulnerabilities? [66] The courts must take careful consideration of the circumstances where an Indigenous woman is victim to intimate partnerviolence. Statistics Canada recently released a report entitled Violent Victimization And Perceptions Of Safety: Experiences Of FirstNations, Metis And Inuit Women In Canada (April 26, 2022, https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00004-eng.htm, accessed June 22, 2022).

The report summarizes a number of relevant findings: - The disproportionately high rates of violence and victimization of Indigenous peoples is rooted in the traumatic and destructivehistory of colonialization that impacted and continues to impact Indigenous families, communities and Canadian society overall. - Indigenous women, in particular, have faced and continue to face high rates of violence, as reflected by the National Inquiry intoMissing and Murdered Indigenous Women and Girls. - Indigenous women are overrepresented as victims of various types of violence and this is particularly the case when consideringintimate partner violence.

According to the Survey of Safety in Private and Public Spaces, more than 4 in 10 Indigenous women haveexperienced physical or sexual violence by an intimate partner. In comparison, one-quarter of non-Indigenous women have experienced

physical or sexual assault by an intimate partner in their lifetime, “significantly less than Indigenous women”. [ 67 ] In R. v. Reno , 2019 BCPC 347 , Judge Brecknell commented at paragraph 37: [37] Recently the issues surrounding intimate partner violence and abuse in First Nation communities and against Indigenous women have been brought into sharp focus by the Murdered and Missing Indigenous Women and Girls Inquiry Report.

That report chronicles the history of violence against Indigenous women in all forms and the fundamental lack of understanding and acceptance of their many stories of violent treatment at the hands of others, very often partners, by the police, the courts, and the community . [ 68 ] In Reno , the defence sought a probation order with a fulsome rehabilitative plan. The Crown sought a sentence of 16 to 22 months in a provincial jail followed by two years of probation and the ancillary orders of a DNA and a s. 109 lifetime prohibition. After considering the repeated violence Ms. Nande suffered at the hands of Mr.

Reno, Judge Brecknell sentenced him to 18 months' jail. [ 69 ] Judge s. Keyes recently addressed this issue in R. v. L.J.P. , 2020 BCPC 270 . L.J.P. is different in that the accused was convicted of sexual assault against an Indigenous female, but her comments are still appropriate here. At paragraphs 42 and 43, Judge Keyes writes: [42] … the [ Murdered and Missing Indigenous Women and Girls ] Inquiry also called for a change to the indifference of government and justice institutions to the suffering of Indigenous females.

Institutional indifference to the suffering of Indigenous women and girls can take many forms in the criminal justice system.

Sometimes it manifests in substandard investigation on the part of investigating bodies such as the police, but where a complaint is investigated and the matter is referred to the Crown for charge approval and prosecution, institutional indifference to the suffering of Indigenous women can take the form of inadequate charges, the choice of proceeding in a fashion that does not reflect the seriousness of the offence, or offering very lenient sentencing positions that do not acknowledge the seriousness of the offence, the need for public denunciation, the need for protection of the public, or the impact on the victim. [43] The court must recognize the vulnerability of these Indigenous victims and impose a sentence which will help protect Indigenous women and girls, denounce the longstanding abuse of Indigenous women and girls, and deter the men who abuse them from continuing this behaviour. [Notation added] [ 70 ] I confirm that, while our courts must be vigilant to ensure that the application of the Gladue principles and the need to reduce the rate of incarceration of Indigenous offenders are carefully considered, this must not result in Indigenous communities and, in particular, Indigenous women remaining more at risk of continued violence at the hands of violent offenders, no matter the historical reasons for their offending. [ 71 ] In this case, any sentence the court imposes must consider what the appropriate sentence is in light of the Gladue principles as they apply to Mr.

Needlay as an Indigenous person. The court must also, equally, take care to apply these principles in a way that that does not place Ms. Berg nor Mr. Needlay’s family and community at risk of further violence. The court must also impose a sentence that recognizes the seriousness of the offence by imposing a sentence that clearly speaks to the importance of denunciation and general deterrence. 7. Are There Collateral Consequences That Should Affect The Sentence? [ 72 ] Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences.

Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender, R. v.

Suter , 2018 SCC 34 . [ 73 ] The court stated in Suter : [47] … In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. [48] Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (a) … as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” … The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity … The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence … less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence.

In fact, “[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished” … Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender. [footnotes removed] [ 74 ] Keeping this in mind, the Supreme Court was also clear that the fundamental principle of proportionality must prevail in every case and that “collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender” ( Suter at para 56 ). [ 75 ] In this case, I find that incarceration would have a significant collateral consequence on Mr.

Needlay’s family and, in particular,

his parents who rely upon him to continue living a remote and traditional life. I also find that the collateral consequences of a s. 110 firearms prohibition would have a unique and adverse impact upon Mr. Needlay due to his unique cultural, geographical, and family reality. CROWN'S POSITION ON SENTENCING [ 76 ] The Crown submits the appropriate sentence is one-year incarceration followed by two years of probation. They also submit that a DNA order is mandatory and a firearms prohibition is discretionary.

Crown invites the court to make a 10-year firearms prohibition with a s. 113 exception for sustenance hunting. The Crown submits that a conditional sentence order, even crafted with onerous conditions, would not have meaningful consequences to Mr. Needlay and would not reflect society’s condemnation of an offence of this level of violence on his intimate partner, Ms. Berg. DEFENCE'S POSITION ON SENTENCING [ 77 ] Defence submits that the appropriate sentence is an 18-month conditional sentence order and an 18-month probation order to follow. Defence stresses to the court that Mr.

Needlay does not pose any significant risk to reoffend, especially if the sentence is crafted to help manage his identified risk factors of his mental health and his use of alcohol. Defence reminds the court to carefully consider Mr. Needlay’s unique Gladue factors and the undue impact incarceration would have on him and his family and asks the court not to impose a specific s. 110 firearms prohibition. They submit that a lengthy no-weapons prohibition would have a significant impact and a longer firearms prohibition would be disproportionate based upon his traditional lifestyle.

ANALYSIS [ 78 ] Returning to the seven questions I posed at the beginning: 1. What Is The Nature Of The Assault; and, 2. What Was The Impact On Ms. Berg? [ 79 ] I find that the assault on Ms. Berg was severe and this is aggravating. Although how the assault occurred is still unknown, there is no doubt that Mr. Needlay used a firearm as a weapon to repeatedly and violently bludgeon Ms. Berg. [ 80 ] I find the extent and long lasting nature of the injuries suffered by Ms. Berg to be aggravating. [ 81 ] I find Mr. Needlay’s assault on Ms.

Berg as a vulnerable Indigenous woman who thought she had found a refuge in Fontas to be aggravating. 3. What Are Mr. Needlay's Personal Circumstances? [ 82 ] Mr. Needlay is a middle-aged Indigenous man who has lived a mostly traditional life supporting his parents while living remote- in an area of Northern British Columbia.

He has a limited and dated criminal record with little relevance to the matters before me. [ 83 ] His mother went to residential school for a short period of time. [ 84 ] It is significant that he and his family have been isolated from their community due to the Canadian Government’s relocation of the other members of the Fontas onto the reserve. This isolation has no doubt had a significant impact on Mr. Needlay and his relationships. [ 85 ] I find that Mr. Needlay’s guilty plea and his remorse are mitigating. He does not come to the court simply saying the words.

He has taken steps to demonstrate his willingness to accept responsibility for what he did first by pleading guilty. He has taken steps to reduce the likelihood of further offending by stopping drinking, taking counselling, and pursuing a culturally appropriate residential treatment program. 4. What Is The Interplay Between Mr. Needlay’s Mental Illness And His Moral Culpability? [ 86 ] Mr. Needlay was diagnosed with schizophrenia as a young adult and has received treatment for this illness for much of his life. Mr. Needlay’s mental illness, no doubt, is an important part of who Mr.

Needlay is and may have played some role in how he coped with the consumption of alcohol on the night in question. However, there is no evidence before me to find that his mental illness played enough of a role on the night in question to have a mitigating impact on Mr. Needlay’s moral culpability. 5. What Is The Interplay Between A Conditional Sentence Order And Mr. Needlay’s Gladue Factors? [ 87 ] The Gladue factors, as they apply to Mr. Needlay’s personal and family history, are essential considerations when crafting an appropriate sentence. I am told by his family, and even by Ms.

Berg, that the impact of actual incarceration on Mr. Needlay would be disproportionate. [ 88 ] A lengthy conditional sentence that imposes strict conditions on Mr. Needlay’s freedoms will have the punitive effect of denouncing his conduct, while deterring others, while supporting him in his rehabilitation and allowing him to support his parents to continue to live a traditional life into the future. 6.

What Are The Specific Principles Of Sentencing For Intimate Partner Violence That Apply? [ 89 ] In order to begin to have an impact upon the disproportionate violence suffered by Indigenous women, the sentence I impose must be significant and it must recognize both the consequences of the assault on Ms. Berg and the broader concept of disproportionate intimate partner violence against Indigenous women.

[ 90 ] The court must denounce Mr. Needlay’s violent attack on Ms. Berg, who is a vulnerable Indigenous female, but that must be done with restraint and in a way that recognizes his “low risk” so long as his mental health and consumption of alcohol is monitored. [ 91 ] Reducing further violence to Ms. Berg and others like her, while denouncing and deterring others from committing intimate partner violence, can be done with a conditional sentence order. 7. Are There Collateral Consequences That Should Affect The Sentence? [ 92 ] The collateral consequences of incarceration in this case are unique to Mr. Needlay.

The Canadian Government’s early 20th Century policy of relocation of the First Nations people had a profound effect upon the people of Fontas and it cannot be overlooked that if Mr. Needlay were to be incarcerated, it would not be possible for his parents, the last remaining residents of Fontas, to continue to permanently reside there. [ 93 ] The collateral consequences of a s. 110 firearms prohibition would also have a unique and adverse impact upon Mr. Needlay due to his unique cultural, geographical, and familial reality. CONCLUSION ON A FIT SENTENCE [ 94 ] As I have said earlier, Mr.

Needlay is not going to jail, but based on all of the above and the submissions in the matter, I conclude that the fit sentence is a 728-day conditional sentence order, that is just under two years, to be followed by a two-year probation order and ancillary orders. [ 95 ] Under supervision and with support, this sentence will allow Mr. Needlay to work on his rehabilitation, to remain a valuable member of our society by supporting his parents as long as possible to live their traditional lifestyle, and still clearly reflect the very serious nature of the assault on Ms. Berg.

This is the longest conditional sentence order that I am allowed to impose. SENTENCE [ 96 ] Now, Mr. Needlay, you will need to stand, please. [ 97 ] I am going to be reading out a lot here. It is going to be quite complicated. Some of the language I need to use is complex legal language.

I am going to try to go slowly, but you will get a copy of this at the end and you will have a chance to review it with your lawyer and your probation officer, okay? [ 98 ] THE ACCUSED: Okay. [ 99 ] THE COURT: There are a few places where I will need to stop and defer to counsel to see if what I have proposed here appears manageable based on their knowledge of the specific circumstances. [ 100 ] Sir, you must comply with a conditional sentence order for a term of 728 days.

The conditions are: [ 101 ] 3001, these are the compulsory conditions: a. you must keep the peace and be of good behaviour; b. you must appear before the court when required to do so by the court; c. you must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation; and d. you must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 102 ] 3103, You must report by telephone to a conditional sentence supervisor, and the phone number will be on the order, by 3:00 p.m., today, June 24th of 2022.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further direction to report. After that, you must report as directed by your supervisor. [ 103 ] 3002, you must have no contact or communication directly or indirectly with Annie Berg. [ 104 ] 3005-1, you must not go within 50 metres of any place where Annie Berg lives, works, attends school, or worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures. [ 105 ] And I pause on that condition. I recognize Ms.

Berg is a member of the Fort Nelson First Nation and that Mr. Needlay is a member of the Fort Nelson First Nation. Do we know if there will be community cultural events that they might both be at. I do not intend to restrict Mr. Needlay's attendance at important cultural events. Mr. Swartz, do you know? [ 106 ] CNSL P. SWARTZ: I can tell you this much. I've had no contact from Ms. Berg so I don't know any current circumstances. I'm not aware of her even residing in and around the area, but I know that this has been home and she did have a sister here. She is likely to be back.

I'm not aware of her participating in cultural events at Fort Nelson First Nation. I'm not opposed to there being incidental contact either at the band office, the wellness centre, or at public cultural events of the Fort Nelson First Nation. [ 107 ] THE COURT: Thank you, that is helpful. All right. Mr. Perrin, any submissions that you know of this? [ 108 ] CNSL W. PERRIN: I thank you, Your Honour, for the opportunity and I thank my friend for his position. I've spoken with Ms. Sharon Needlay who's present, Mr. Needlay's sister. She advises that Ms. Berg is not a member of the same band, is a member of the

Fort Liard Band and so should not be at specific cultural events, but I understand that they both do access the wellness centre and I would appreciate that exception if Your Honour sees fit. [ 109 ] THE COURT: Okay, thank you very much. Thank you for that information. We will add to that last condition, the 3005-1, a further sentence. [ 110 ] You may have incidental contact with Annie Berg while at the Fort Nelson First Nation band office, wellness centre, or at public cultural events of the Fort Nelson First Nation, and Mr.

Perrin can describe to you what "incidental contact" means. [ 111 ] 3203, sir, you must live at an address approved in advance by your conditional sentence supervisor and provide your supervisor with your phone number. You must not change your address or phone number without prior permission from your supervisor. [ 112 ] The next is formulated around Condition 3209-2, but it is somewhat different. What I plan to do is give him house arrest 24 hours a day every day with exceptions to leave the house, but these are going to look differently depending on if he is living at Fontas or if he is living elsewhere.

So keep that in mind and this is for the entire duration of the conditional sentence order. There is no break here as far as the house arrest goes. It goes for the full almost two years. So listen carefully and then let me know if this -- [ 113 ] CNSL P. SWARTZ: Madam Clerk, I am just interjecting because I see that Judge Golinsky has frozen and I do not hear her anymore. I assume that everybody else is in the same position. [ 114 ] THE CLERK: Yes, that is correct.

Just give me one moment. [ DISCUSSION RE TECHNICAL DIFFICULTIES] (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 115 ] THE CLERK: Back on the record and joining in the judge. Order in court. We are back on the record with Mr. Needlay's matter, Your Honour. [ 116 ] THE COURT: Thank you. I am sorry again about that. [ 117 ] Is it possible, Madam Clerk, maybe to read the addition we gave to 3005-1, that last sentence? My computer has shut down and I had not saved the wording that we had determined and I want to record it. [ 118 ] THE CLERK: Of course, Your Honour.

So we added, that is the no-go within 50 metres, "You must not go to or be within 50 metres of any place where Annie Berg lives, works, attends school, worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures, except you may have incidental contact with Annie Berg while at the Fort Nelson band office, wellness centre, or at public cultural events of the Fort Nelson First Nation." [ 119 ] THE COURT: Thank you. All right.

So I was just introducing the house arrest conditions that I had determined were appropriate. [ 120 ] So your next condition, while you are residing at Fontas, British Columbia, you must obey house arrest by being inside your residence or within 500 metres of your residence 24 hours a day, every day.

You must present yourself within 30 minutes at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. [ 121 ] The next condition, are you ready, Madam Clerk? [ 122 ] THE CLERK: Thank you, Your Honour. [ 123 ] THE COURT: If you are not residing at Fontas, British Columbia, you must obey house arrest by being inside your residence or on its lot 24 hours a day, every day.

You must present yourself at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest, and I am going to go through the exceptions and then we will revisit this as a general principle to see if there is anything that might make this more enforceable and more reasonable for everyone. [ 124 ] So you may be away -- [ 125 ] CNSL P. SWARTZ: Uh -- [ 126 ] THE COURT: Oh, sorry, go ahead. [ 127 ] CNSL P. SWARTZ: Yes, I am sorry. As I was making notes, I wanted to make sure I captured that correctly.

The "while in Fontas 24/7" is inside the residence or within 500 metres of the residence and did you pronounce both door checks and phone checks for that? [ 128 ] THE COURT: I did, but the door checks I give him 30 minutes. So, if someone attends, he will have to have some way of contacting his parents, a whistle, a walkie-talkie, he is only going to be a half-kilometre away, they can yell, but he has 30 minutes to attend at the door if he is out -- [ 129 ] CNSL P. SWARTZ: Door checks within 30 minutes and phone checks immediately.

Yes, thank you, and then I understand what you have said on the "if not in Fontas." Thank you.

[ 130 ] THE COURT: Okay, thank you. [ 131 ] The next condition, sir, you may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for medical appointments, hunting and gathering traditional foods for yourself and your family, counselling, or other compelling reasons. You must carry the permission with you when you are outside your residence. [ 132 ] The last set of exceptions are as follows.

You may also be away from your residence during the house arrest hours while at or going directly to or returning directly from a healthcare facility because of a medical emergency; if asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility; in the immediate presence of your father, mother - and I questioned whether it would be appropriate for Sharon Needlay to be listed here - for compelling reasons such as attending organized cultural events, but only with the prior written permission of your conditional sentence supervisor; and once a month to attend to medical appointments and purchase supplies for yourself and your family, but only with the prior written permission of your conditional sentence supervisor. [ 133 ] So I will turn to you, Mr.

Swartz, first, then, the house arrest, does that appear, from the Crown's perspective, to be enforceable and reasonable under all the circumstances? [ 134 ] CNSL P. SWARTZ: Yes, I'm sorry if I'm going to be too wordy. The police are not going to be attending at Fontas, I can simply say that. There's no way that they have the resources to get out there to try to do door checks and doing phone checks. Of course, he may be anywhere when a phone check is done.

If they don't have visual sight, the 30-minute delay is interesting if they did make a visit out there, but with that community being only remotely accessible by flying in, it is very unlikely that any kind of door check is going to be -- but I think Your Honour understood that from the submissions previously and so I have nothing further to say about that.

Turning to the exceptions that you have made, I just wanted to understand for clarity when you said an exception for the medical emergency and to provide proof, I think the words you also used there had to do with permission from the conditional sentence supervisor. [ 135 ] THE COURT: No, not for that condition. [ 136 ] CNSL P. SWARTZ: All right. [ 137 ] THE COURT: That condition simply read that, if asked, he must provide proof of his attendance. That one did not require prior permission. [ 138 ] CNSL P. SWARTZ: Thank you.

Then the exception with mother, father, and perhaps sister, I don't oppose it being with sister, to attend cultural events, but again I think then you did say with permission. So, in other words, Mr. Needlay would have to get permission to attend cultural events and, if he was granted the permission, then he can attend those cultural events only if he is with his mother, father, or sister; is that the intention? [ 139 ] THE COURT: That is the intention. [ 140 ] CNSL P. SWARTZ: Thank you, and then I think I understand the one time for personal business once per month.

Indeed, there was evidence that, about once per month, either he or others were travelling in and out for supplies, things of that sort. It was about once a month. So, again, that intention -- Your Honour's intention is that he would have to obtain specific permission as to any particular day, let's say, from his conditional sentence supervisor that he wanted to do this personal business. He'd have to get the advance permission and then he can only do that by coming into town with a mother, father, or being with the sister? Is that -- [ 141 ] THE COURT: That is right.

So he is allowed to come into town once a month. Now, I said "medical appointments and to purchase supplies," but perhaps I should add the phrase, "And to attend to other personal business." [ 142 ] CNSL P. SWARTZ: All right. So he's -- he's permitted to come into town that one time per month to do all of those things unaccompanied by anyone so long as he has, I think you did say, "advance permission from the conditional sentence supervisor"? [ 143 ] THE COURT: Correct, yes. [ 144 ] CNSL P.

SWARTZ: Thank you. [ 145 ] THE COURT: So all he has to do is say, "I want to come in and go grocery shopping this Wednesday," and they would -- it sounds like he is in regular contact with them by -- there is good cellphone service out there. So there should be no problem with him being able to get advance permission for these things. [ 146 ] CNSL P. SWARTZ: Thank you. I understand now. I'll stop talking. [ 147 ] THE COURT: All right, thank you. Mr. Perrin? [ 148 ] CNSL W. PERRIN: Thank you, Your Honour.

The house arrest conditions with the exceptions that Your Honour has carefully thought out should be workable for Mr. Needlay. I would appreciate the inclusion of his sister, Sharon, as someone that he can be with as I understand that she is his main support here in town, but certainly, Mr. Needlay can get permission when he needs to go out and engage in any hunting or gathering. He has cellphone reception and is in good contact with his supervisor. So I appreciate the exceptions, Your Honour. Thank you. [ 149 ] THE COURT: All right, thank you. So I do have a couple questions, then -- or comments, as well. Mr.

Swartz has noted that it is unlikely that the RCMP will come to do house checks while he is at Fontas, but this does give them the permission to do so and the requirement for him to be there. So, on the off chance that someone hears a rumour that Mr. Needlay has gone to Liard for a camping trip, they can come to his house and check it out. It is not likely they will have those specific resources and do it regularly, but they will

have the ability to do so and two years is a long time. [ 150 ] CNSL P. SWARTZ: Thank you. [ 151 ] THE COURT: Then, Madam Clerk, let us make a couple of changes here.

On the (b), "the exceptions in the immediate presence of your father, mother, or sister," let us put their names in, "Of your father, Jackie Needlay, Sr. , your mother, Rose Needlay, or your sister, Sharon Needlay for compelling reasons such as attending organized cultural events.” So there could be other events that your supervisor thinks it is appropriate for you to be in town or somewhere with one of those people -- [ 152 ] THE ACCUSED: Okay. [ 153 ] THE COURT: -- but that is up to them to decide -- [ 154 ] THE ACCUSED: Yeah, yeah. [ 155 ] THE COURT: And then the next exception, "Once a month to attend medical appointments and purchase supplies for yourself and your family and to attend to other personal business." [ 156 ] The next question I have, Mr.

Perrin, is I have indicated that this needs to be written permission. Does Mr. Needlay text with his conditional -- or with his bail supervisor right now or is it only verbal? [ 157 ] CNSL W. PERRIN: Your Honour, I have to inquire with Mr. Needlay. Mr. Needlay, do you text communicate with your supervisor? [ 158 ] THE ACCUSED: Yeah, I could, Your Honour. [ 159 ] CNSL W. PERRIN: You can? [ 160 ] THE ACCUSED: I could, yeah. [ 161 ] CNSL W. PERRIN: Okay, have you been doing that so far? [ 162 ] THE ACCUSED: I have not, no. [ 163 ] CNSL W. PERRIN: Okay. I'm sure Your Honour heard. Mr.

Needlay says he can text, but hasn't been doing that so far. So far it's been verbal, but he says he does have the ability to text and so electronic written permission, I think, could be sent to Mr. Needlay. [ 164 ] THE COURT: Okay. I think -- my experience has been that supervisors do have an ability to text with their clients. Is that right? I do not want to have them using their personal phone and some other alternative means of communication if that is not comfortable for them. Mr. Swartz? [ 165 ] CNSL P.

SWARTZ: Yeah, my understanding in recent conversations with Corrections was that, although they do have texting and/or email communications with clients, reporting in that method is not acceptable. There has to still be reporting in person or by telephone as directed. It's insufficient for a person to text a message, "Hi, I'm reporting to you." So communications such as you've described for permissions, I believe that's acceptable. That's my understanding it's acceptable. [ 166 ] THE COURT: All right, thank you very much.

If there are any problems with his supervisors with respect to giving him electronic permission, then I would invite someone to come back to me and we can adjust this order, but let us leave it at this right now. [ 167 ] CNSL W. PERRIN: Thank you, Your Honour. [ 168 ] CNSL P. SWARTZ: Thank you. [ 169 ] THE COURT: All right. So, no other questions, then? That seems to be a workable thing, and Mr. Needlay, half a kilometre, do you know how far 500 metres is? You might still think in miles?

I know my husband does. [ 170 ] THE ACCUSED: 500 metres, yeah. [ 171 ] THE COURT: Yes? [ 172 ] THE ACCUSED: Yeah. [ 173 ] THE COURT: Okay. All right, thank you very much. All right. [ 174 ] So the next condition, is 3214. If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format when you are doing or possessing something that requires permission. You must show the permission, along with a copy of this order, to a peace officer who: (

a) requests to see it; or (

b) stops you for any reason. [ 175 ] The next condition is 3307, sir, you must not enter into or continue any dating or marriage or common-law relationship with any person until you have identified to your conditional sentence supervisor the person with whom you are in or propose to enter a relationship and your conditional sentence supervisor has informed that person of your convictions and this order. [ 176 ] The next is 3401, you must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. There are no exceptions to that.

[ 177 ] 3403, you must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. [ 178 ] I just pause to note that I put my mind to whether an abstinence clause is appropriate under all of the circumstances. This is a jail sentence served in the community. Intoxicants would not be available if he was in jail.

Additionally, I understand that he has been sober now since this incident and so I am confident that this is not an unduly onerous condition and, as well, I reflect on what the doctor said that managing his use of substances is going to be an essential part of keeping Mr. Needlay at a low risk to reoffend. [ 179 ] The next condition, 3501, you must attend, participate in, and complete any intake, assessment, counselling, or education program directed by your conditional sentence supervisor.

This may include, but is not limited to, counselling or programming for violence prevention, alcohol or drug addiction, spousal abuse prevention, and psychiatric or psychological health. [ 180 ] The next condition, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your conditional sentence supervisor. So that means if they can help you get to the North Winds Healing facility, if that is somewhere you want to go, they can help you put that together. [ 181 ] CNSL P. SWARTZ: Your Honour, sorry to interrupt.

That was -- that is Model Condition 3503 -- [ 182 ] THE COURT: 02, 3502, I think. [ 183 ] CNSL P. SWARTZ: I'm not interjecting so much about the number. I do appreciate there is a standard worded clause having to do with full-time attendance, but my understanding is that can only be imposed with the consent of the accused, and so I'm asking for Mr. Needlay through counsel to confirm he is consenting that if he was directed to attend outside the community into a full-time program, that he would do so, that he is consenting to that. [ 184 ] CNSL W.

PERRIN: Yes, and Your Honour, that is something I've spoken with Mr. Needlay about and I am instructed that it is his intention to attend treatment once he can get in there and make arrangements suitable for his family back in Fontas. So, certainly, that order is by consent. [ 185 ] THE COURT: All right, thank you. I did notice that, Mr. Swartz, and smarter minds than mine have created this Picklist and I notice that the consent is required for bail and probation, but not on a conditional sentence order as far as it is worded but that may just be an oversight, as well. [ 186 ] So, Madam Clerk, we do have Mr.

Needlay's consent. So, at the beginning of the Condition Number 3502, if you could please start the wording, "With your consent” comma, "You must," and thank you for bringing that point up, Mr. Swartz. [ 187 ] CNSL P. SWARTZ: Well, actually, as I began to speak, I thought to myself, this is a conditional sentence and perhaps different provisions apply, but I'm not sure in considering a number of cases from Shokar onward. [ 188 ] THE COURT: No, it is fair, and probably a bit of a complex issue that we do not need to solve today because we have Mr. Needlay's consent. [ 189 ] 3507 is the next condition. Mr.

Needlay, this one, I do need your consent, “Having consented in court”, and I will have your lawyer let me know if you consent to this condition at the end, this is called -- what we call a Rogers order, and it means you take care of your mental health, “you must do the following: a. Report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your conditional sentence supervisor. b. Attend all scheduled appointments with the professionals in charge of your mental health. c.

Take all medications and medical treatment prescribed to you by those professionals. d. Provide your conditional sentence supervisor with the names, addresses, and phone numbers of those professionals. e. Give those professionals a copy of this order. [ 190 ] If you decide not to follow these directions, you must immediately report that fact to your conditional sentence supervisor.

You have consented in court to those professionals notifying your conditional sentence supervisor if you fail to attend for an appointment or refuse to take the prescribed treatment or medication. [ 191 ] So there are two levels of consent here. One is that you consent to attending to medical treatment because it is your body, your life. I cannot force you to do that unless you agree. The second level of consent is you are agreeing to let your conditional sentence supervisor speak to your doctors and, normally, there would be privacy there. So you need to be able to consent to both. [ 192 ] Mr.

Perrin, does it make sense? I see Mr. Needlay is nodding his head. [ 193 ] CNSL W. PERRIN: Yes, Your Honour, that's a condition I had reviewed thoroughly with Mr. Needlay and he does consent on both levels. Thank you. [ 194 ] THE COURT: Thank you. Thank you for doing that in advance. [ 195 ] 3610 is the next condition.

You must not possess directly or indirectly any weapon as defined by the Criminal Code , including: firearms and ammunition; crossbows, prohibited or restricted weapons or devices, or explosive substances; 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; any imitation of all of 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. [ 196 ] The exceptions are as follows. You may possess a firearm and ammunition for sustenance purposes on the following conditions: 1. you are properly licensed; 2. you are sober and 3. you possess the firearm and ammunition only while at, going directly to, or returning directly from a legal hunt. [ 197 ] So I pause to comment on that condition. First, if I recall the submissions raised, you do not have a Possession and Acquisition Licence.

As I recall, I heard submissions you do not have your PAL. [ 198 ] THE ACCUSED: No, I don't. No. [ 199 ] THE COURT: You are required to have a PAL even as an Indigenous person. [ 200 ] THE ACCUSED: Okay. [ 201 ] THE COURT: So you are not to individually possess firearms unless you have a PAL. If you get a PAL, then you are allowed to go hunting. I considered the Crown's submission that you should only be able to do that with your father and he may have a PAL.

So now you only have to be able to go with him if he has a PAL but I know your father is getting older and I am not confident that he will be able to always hunt with you. [ 202 ] THE ACCUSED: Yeah. [ 203 ] THE COURT: So, if you are properly licenced, you can hunt without your father to provide sustenance for yourself and your family. [ 204 ] So those are the conditions of the conditional sentence order. It is long. I am not done yet, but these are the most important conditions right now for you to think about. It is for the next 728 days. That is almost two years.

If you breach any of these conditions, and I am sure Mr. Perrin has talked to you about this, they will take you to jail and you will need to convince a judge that it is okay for you to be released again on this order. Otherwise, you might serve the rest of this sentence in jail.

So it is so important that you understand this order and that you follow this order, okay? [ 205 ] THE ACCUSED: Yes, yes, yes. [ 206 ] THE COURT: I tried to make it as appropriate as possible while recognizing the very serious offence that you have committed. [ 207 ] THE ACCUSED: Yes, yes. [ 208 ] THE COURT: Do you have any questions or concerns about the order, Mr. Needlay? [ 209 ] THE ACCUSED: No, no, no, it's great. [ 210 ] THE COURT: All right. So, then, Madam Clerk, he does not need to be read into the order, but he will get a copy of it. [ 211 ] Mr. Perrin, can we get a copy of this to you? Mr.

Needlay can get a copy of it this afternoon here at the court. What suits you? Maybe both? [ 212 ] CNSL W. PERRIN: Your Honour, I think that both would be preferable from my perspective. I'm on the road today and I'd like to make sure that Mr. Needlay does have a copy in his hand as the conditions go into effect today. So if one could please be handed to him this afternoon and then I can provide my email address to Madam Clerk to ensure that we have one on file, as well. [ 213 ] THE COURT: All right, thank you very much, and Mr.

Needlay, you will have to report to your conditional sentence supervisor today by three o'clock. [ 214 ] THE ACCUSED: Yes. [ 215 ] THE COURT: So that will be a phone call and the phone number, like I said, will be on the form. [ 216 ] THE ACCUSED: Okay. Okay, yeah. [ 217 ] THE COURT: So following the two-year conditional sentence order, I am imposing a two-year probation order. So there is four years of hard work ahead of you, Mr. Needlay. [ 218 ] THE ACCUSED: Yes, yes, yes. [ 219 ] THE COURT: So, sir, you must comply with a probation order.

I am going to put 24 months because I think that is easier for them to enforce. [ 220 ] THE ACCUSED: All right. [ 221 ] THE COURT: The conditions are as follows, 2001, again, you are going to get a copy of this.

[ 222 ] These are the compulsory conditions. You must keep the peace and be of good behaviour. These start in two years. These are for the last two years of your sentence. You must appear before the court when required to do so by the court; and you must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or officer of change in employment or occupation. [ 223 ] I just want to say again, a lot of these are going to sound the same and a lot of them are going to flow and it will seem like it is all four years. The first two years has the house arrest.

The last two years do not. As far as your day-to-day life goes, that is the difference. [ 224 ] THE ACCUSED: Okay, yeah. [ 225 ] THE COURT: The first two years, if you break it, you go to jail. [ 226 ] THE ACCUSED: Yes. Yes, okay, yes. [ 227 ] THE COURT: The second two years, if you break the order, you could be charged with another criminal offence and taken to jail -- [ 228 ] THE ACCUSED: Okay. [ 229 ] THE COURT: -- but it is -- it is -- the first two years are to be very, very delicate ones you want to be very, very careful about.

The second ones you also have to be, but by then, it will be an old habit for you and you will totally have this. [ 230 ] THE ACCUSED: Yeah, yeah. [ 231 ] THE COURT: The next condition is 2104, you must report by telephone to a probation officer at the Fort Nelson Community Corrections Office and the address will be on this document. [ 232 ] So, sir, once the first two years are up, you must report by telephone to a probation officer at the Fort Nelson Community Corrections Office within two business days of the completion of your conditional sentence unless you have obtained, before the completion of your conditional sentence, written permission from the probation officer to report elsewhere or within a different time.

After that, you must report as directed by your officer. [ 233 ] 2002, you must have no contact or communication directly or indirectly with Annie Berg. [ 234 ] 2005-1, you must not go within 50 metres of any place where Annie Berg lives, works, attends school, or worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures.

I am going to add the same exception that we added before, except you may have incidental contact with Annie Berg at the Fort Nelson First Nation band office, wellness centre, or while at public cultural events of the Fort Nelson First Nation. [ 235 ] I did not ask you this before. You say you know how 500 metres is and I am not trying to be rude, simply, some people do not know or do not think this way: Do you know how far 50 metres is? [ 236 ] THE ACCUSED: Fifty metres, yeah. [ 237 ] THE COURT: Okay. 2203 is the next condition.

You must live at an address approved in advance by your probation officer and provide your officer with your phone number. You must not change your address or phone number without prior written permission from your officer. [ 238 ] The next condition is 2307. You must not enter into or continue any dating or marriage or common-law relati

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