R. v. Williams, 2013 BCSC 1082

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Williams, 2013 BCSC 1082 Date: 20130529 Docket: 37955-6 Registry: Campbell River Regina v. Tony Wilfred Williams Before: The Honourable Mr. Justice Thompson Oral Reasons for Sentence Counsel for the Crown: B. Goddard Counsel for the Accused: D. Marion Place and Date of Sentencing Hearing: Campbell River, B.C. May 28, 2013 Place and Date of Sentence: Campbell River, B.C. May 29, 2013 [ 1 ] THE COURT: This is a very sad day.

All cases involving serious injury or death are tragic, but I think it is fair to say that this case is more tragic than most. [ 2 ] On 27 September 2011, Mr. Williams, an aboriginal man of then only 18 years of age, returned home to Campbell River after working alongside his father in Zeballos. In the early morning hours of the next day after a bout of drinking, Mr. Williams stabbed his 33-year-old half-brother, Edison James Thomas, causing his death. [ 3 ] Mr. Williams was charged with second degree murder and spent 81 days in custody until his surety bail was arranged.

Yesterday, as part of an arrangement between the Crown and Mr. Williams, the Crown preferred a new indictment containing an allegation that Mr. Williams committed the crime of manslaughter in connection with the death of Mr. Thomas. [ 4 ] At the conclusion of the inquiries called for by s. 606 of the Criminal Code , Mr. Williams pled guilty to the manslaughter charge. [ 5 ] The parties made a joint submission that the appropriate sentence is four years' imprisonment, less one-for-one credit for the 81 days in custody.

The parties also jointly submit that certain mandatory ancillary orders are appropriate, and that the victim fine surcharge should be waived. [ 6 ] In addition to the helpful submissions of counsel, I have had the benefit of a thorough pre-sentence report which included a Gladue section. The Facts Surrounding the Offence [ 7 ] Mr. Williams and his half-brother Mr. Thomas had a relationship that was at its worst when both were drinking. On the date in question, the two men were drinking in the basement of the family home. At some point in the early morning hours, Mr.

Thomas said that he wished to continue the drinking party. Mr. Williams wished to bring it to an end. The disagreement escalated and became physical. The two men wrestled. Mr. Williams went upstairs, told his mother that he was being beat up, and asked her to call the police. [ 8 ] I pause to add that I was told that Mr. Thomas had a significant record of assault convictions and that he was a larger man than Mr. Williams, who has a slight build. [ 9 ] Mr. Williams then returned to the basement, where his sleeping quarters were located, armed with a chef's knife from the kitchen. [ 10 ] Shortly thereafter, Mr.

Thomas was stabbed by Mr. Williams. The pathology evidence revealed one wound in the side of Mr. Thomas's torso to a depth of approximately six inches. Mr. Thomas died in hospital approximately three hours later. [ 11 ] Mr. Williams has exhibited remorse and regret early and consistently - from the time of his interview by the police shortly after the offence, up to and including his statement to the court in response to being asked whether he had anything to say.

Background of the Offender [12] I will not repeat all of the details to be found in the pre-sentence report. The author concluded, after interviewing materialwitnesses, that Mr. Williams childhood was plagued by chaos, including exposure to violence and addiction issues, separation from hissiblings, placement in foster homes, multiple moves, and neglect. That said, there seems to be no question of the love and support shownby his parents to Mr. Williams at the current time. [13] Mr. Williams was twice apprehended by the child protection authorities. On the last occasion he was seven years old. [14] Mr.

Williams is one of ten children of Mabel George. The family has endured many tragic losses. A son, Gilbert, died of astab wound. A daughter, Cherlynn, committed suicide. Another son, Erison, died after falling out of the window of a four-storeybuilding. Another child, Tom, died of blood loss after his arm was punctured by glass after throwing a punch. [15] Mr. Williams has made it clear that he appreciates that he has added to all this pain by ending Edison's life. [16] Mr. Williams has been on ADHD medication since he was a young child. He left school after completing Grade 7.

He has hada few seasonal and temporary jobs, including roofing, dishwashing, and doing janitorial work. He is described as having a strong workethic when employed. His last employment was at Zeballos, just before the offence. [17] Mr. Williams does not have an extensive record. He was convicted as a youth in 2011 of assaulting a girlfriend in 2010; asuspended sentence and probation was imposed. He was also convicted in the summer of 2012 of breaching the no-alcohol terms of hisbail for the offence for which he is being sentenced today.

He was sentenced on that occasion to seven days. [18] I accept the submission made on his behalf that although his parents choose to keep the respective bands to which they belongat arm's length, Mr. Williams feels a closeness to his culture and is spiritually interested in his aboriginal heritage. [19] It is evident that Mr. Williams has a serious alcohol problem. He began drinking at age 12, and later in his teen years drankwhenever he had the money to afford the habit.

He drinks to excess and says that he gets "out of control", his underlying anger rising tothe surface. [20] The impression I am left with after hearing submissions and reading the pre-sentence report is that Mr. Williams, who turned20 years old earlier this month, is a decent young man who has had many difficult obstacles placed in his way. His prospects for thefuture will surely depend on whether he can stop abusing alcohol, and the extent to which he can learn to manage his underlying grief,pain, and anger. Applicable Sentencing Principles [21]

Section 718 of the Criminal Code directs that a sentencing court must have regard to certain factors. The

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

a) to denounce unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [22] Additionally, the principle of parity is important. The sentence should be similar to other sentences imposed on similaroffenders for similar offences committed in like circumstances. [23] The court must consider the personal circumstances of Mr. Williams, as well as any relevant aggravating or mitigatingcircumstances related to the offender and the offence.

The aggravating and mitigating circumstances will be readily apparent from myearlier recitation of the circumstances of the offence and the background of Mr. Williams. [24] Further, I am mindful in particular of s. 718.2(

e) and the following passages from R. v. Ipeelee, 2012 SCC 13 , [2012]1 S.C.R. 433, paragraphs 59 and 60: When sentencing an Aboriginal offender, a judge must consider [the factors outlined in R. v. Gladue, (SCC), [1999] 1S.C.R. 688] : (

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

part in bringing the particular Aboriginal offenderbefore the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for theoffender because of his or her particular Aboriginal heritage or connection . . . Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society [I omit the citation of example case]. To be clear, courts must take judicial notice of such matters as the history ofcolonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower

incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [ 25 ] Mr. Williams’ story has features of all of the consequential disadvantages listed by Mr. Justice LeBel in the Ipeelee case, and other disadvantages too. [ 26 ] Mr.

Williams' parents endured residential schooling and battles with alcoholism. Each of Mr. Williams' mother's ten children has, at one time or another, been in the care of the state as a result of the application of child protection legislation. Mr. Williams attended school only through Grade 7, and although he is a young man, he has a considerable history of alcohol abuse.

I have already adverted to the history of many tragic deaths of his siblings. [ 27 ] Appreciation of the "systemic and background factors", including the exposure of his parents to the residential school system and the consequent struggles of many Nuu-chah-nulth people with family violence and abuse and substance misuse, does indeed help put in proper context the case-specific information I have been provided with by counsel and the author of the pre-sentence report. Disposition [ 28 ] I have given careful consideration to the joint submission as to the appropriate sentence.

I have been told that the joint submission arose as a result of extensive discussions between counsel. I am aware that I am not bound by the joint submission. I have reviewed the authorities provided to me by both Crown and defence counsel, in order to establish an appropriate range of fit sentences in a case such as this. [ 29 ] After reflection, I have concluded that the disposition jointly urged upon me is within the range of fit sentences for the offence committed by an offender in Mr. Williams' circumstances. I accept the joint submission. [ 30 ] Mr.

Williams, would you stand, please. [ 31 ] The result of the court accepting the joint submission is that you are sentenced to a term of four years' imprisonment, less one-for-one credit for the 81 days you spent in custody before imposition of this sentence. [ 32 ] I also impose the mandatory weapons prohibition called for because the conviction entered is for a violent offence with a maximum sentence of ten years or more.

You are prohibited from possessing firearms or other weapons outlined in s. 109(2) of the Criminal Code for ten years following your release from imprisonment for this offence, and you are prohibited from possessing any prohibited or restricted firearm or weapon for life. [ 33 ] I make a surrender order pursuant to s. 114. Any of the material caught by s. 114 is to be surrendered within two weeks.

If you do not in fact possess any such weapons or paperwork, then you will not need to take any steps to comply with this surrender order. [ 34 ] Manslaughter is a primary designated offence under s. 487.04 of the Criminal Code , and it follows that there is also an order authorizing the taking of a sample bodily substance from you for forensic DNA analysis. [ 35 ] The victim fine surcharge is waived, as it is evident from the material placed before me that you do not have the ability to pay the surcharge. I am satisfied that to order payment of that surcharge would give rise to an undue hardship. “Thompson J.”