R. v. Billing, 2017 BCSC 1107

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Billing, 2017 BCSC 1107 Date: 20170623 Docket: 27132-2 and 27248-2 Registry: Vancouver Regina v. Jason Curtiss Billing Before: The Honourable Madam Justice DeWitt-Van Oosten Reasons for Sentence Counsel for the Crown: Gerri-Lyn NelsonCounsel for the Accused: Paul R. EvansShabana AliDate of Submissions: June 15, 2017Place and Date of Sentencing: Vancouver, B.C. June 23, 2017 I. INTRODUCTION [1] On February 10, 2017, a jury found Jason Billing guilty of one count of aggravated assault contrary to s. 268(1) of the CriminalCode, R.S.C. 1985, c. C-46.

The maximum sentence for this offence is 14 years' imprisonment. The assault consisted of multiple stabwounds that resulted in a punctured lung. [2] Mr. Billing has also pleaded guilty to two counts of breach of a non-communication order contrary to s. 145(3) of the Code. These offences occurred between June 28 and July 2, 2016. The maximum sentence where the Crown proceeds by indictment is twoyears' imprisonment. [3] The Crown seeks a sentence in the range of four to five years' imprisonment for the aggravated assault and a global six months'jail consecutive for the two breaches.

The defence says a fit sentence would consist of time served for all three offences, followed bylengthy probation. [4] Mr. Billing has spent a total of 351 days in custody awaiting trial and sentencing on these matters. Under s. 719(3.1) of theCode, he is entitled to receive 1.5 days credit for each of these days and to have it treated as time already served. The pre-sentence creditamounts to 527 days. II. CIRCUMSTANCES of the OFFENCES A. Aggravated Assault [5] The aggravated assault was tried by a jury.

It is my responsibility as trial judge to find the facts for the purpose of sentencing:s. 724(2), Criminal Code. [6] As recently affirmed in R. v. Daigle, 2017 BCCA 86: [18] It is the task of a trial judge sitting with a jury to find the facts on which to base the sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 18. The facts must be consistent with the jury's verdict (See Ferguson at para. 17; R. v.

Brown, (SCC), [1991] 2 S.C.R. 518 at 523). [19] In finding those facts, the judge may find any fact that was disclosed by the evidence, with the limitation that any disputedaggravating fact must be proved beyond a reasonable doubt. ... [7] At trial, Jason Billing did not deny responsibility for the stabbing. However, he testified that he acted in self-defence. [8] The jury was told that to convict Mr. Billing, it must be satisfied beyond a reasonable doubt that the Crown proved all essentialelements of the offence of aggravated assault.

Furthermore, the jury had to be satisfied beyond a reasonable doubt that the defence ofself-defence did not apply.

[9] In finding Mr. Billing guilty, the jurors obviously rejected the defence of self-defence. However, there were different routesavailable to them in reaching this conclusion. They could have rejected Mr. Billing's testimony that he believed force (or a threat offorce) was being used against him, or that he stabbed the victim to defend or protect himself. Alternatively, they could have accepted histestimony that he was responding to aggression, but concluded that the nature and amount of force Mr.

Billing used was not reasonable inthe circumstances. [10] I am bound by the express and implied factual implications of the jury's verdict: R. v. Ferguson, 2008 SCC 6 , [2008] 1S.C.R. 96, at paras. 16–18. As such, I must not accept as fact any evidence that could only be consistent with a verdict that was rejected:Ferguson, at para. 17.

However, where the factual implications of the jury's verdict are ambiguous, I must make my own determinationof the relevant facts: Ferguson, at para. 18. [11] In so doing, I do not have to arrive at a "complete theory of the facts"; rather, I need only find the facts necessary to imposesentence: R. v. Ward, 2009 BCCA 409, at para. 14.

Moreover, the offender is not entitled as a matter of law to the most favourable viewof the evidence: Ward, at para. 12. [12] In light of this framework, and based on the trial evidence as a whole, I find the following facts: • on the morning of June 15, 2016, Jason Billing drove several times by the residence of Kevin Markland, the victim of theaggravated assault; • he honked his horn and drove in an aggressive manner, leaving skid marks on the pavement; • the residence was located in Richmond. The victim lived there, as well as his wife, Kim Markland, and the girlfriend of theaccused, Ashley Woods; • Mr.

Billing wanted to see Ms. Woods. For whatever reason, she declined to come out of the residence and the accused wasangered by this; • later in the morning, Kevin Markland went to a nearby gas station to fill some gas cans for use with his lawn mower and Sea-Doo; • when he returned to his residence, Mr. Billing's vehicle was parked in the driveway; • he was engaged in a heated conversation with Kim Markland, who was speaking to him from an upstairs bedroom window. Mr. Billing was visibly agitated; • he saw Kevin Markland's truck, removed his vehicle from the driveway and parked on the street.

Kevin Markland pulled in andparked in the carport; • Mr. Billing began walking up the driveway toward Kevin Markland. Mr. Markland got out of his vehicle and told Mr. Billing toget off the property. He called him a "goof", or something to this effect; • in prison parlance, this term can be taken as an invitation to fight; • Mr. Billing returned to his car. It looked like he was searching for something; • Kevin Markland walked toward him down the driveway.

He had a gas can in his hand that he removed from the back of his truckand the spout was off; • Jason Billing moved toward Kevin Markland; • a physical altercation ensued, with Mr.

Markland splashing gas on Jason Billing; • the altercation started when the two men were on the lower part of the driveway, close to the street; • it is unclear how close they were to each other when it began, or who was the initial aggressor; • Jason Billing was carrying a knife; • he stabbed Kevin Markland with his knife; • the two men moved along a fence by the street as the stabbing unfolded; • Kevin Markland was trying to get away from Mr. Billing; • he was stabbed six times; • when Jason Billing made the last thrust, Mr. Markland's back was against the fence; • Mr.

Billing went back to his car and drove away; • he drove to a nearby pub, conversed with some men in the parking lot and suggested to them that he was the person who had beenstabbed; • he then drove to his mother's home in Surrey;

• he was arrested by police later that same day; • he had driven back to Richmond and was stopped by police; • he acted erratically when arrested, kicking the inside of the police vehicle and chewing foam that was around the window between the front and back seat; • he acknowledged using illicit drugs on June 15; • on June 23, 2016, police searched Mr. Billing's car; • a knife was located in the pocket of the driver's door. When opened, the blade is about 8 centimetres. At trial, Mr.

Billing admitted this was the knife used to stab Kevin Markland; • Kevin Markland sustained four significant stab wounds to his back; • one of these wounds was 7 centimetres in depth; • it went through the skin; a layer of fat; through the muscles and punctured the envelope of one of his lungs; • but for Mr.

Markland's size at the time of the incident, he could have died from this wound; • the conduct of Jason Billings endangered Kevin Markland's life; • he underwent surgery and part of a lung was removed. [ 13 ] Critical evidence before the jury came from an independent civilian witness who drove by the Markland residence while the physical altercation was unfolding. He testified that he saw one man with a jerry can splashing another man with "water".

It looked like the two men were having a fight or scuffle of sorts. [ 14 ] The witness said the two men were close to the grass and sidewalk at the front of the home when this was occurring. [ 15 ] They were pushing and shoving each other. He described the splashing as "frantic". He saw two or three streams of liquid come out of the jerry can.

The man who was being splashed was pushing and shoving at the same time. [ 16 ] In light of this evidence, which offers no clear delineation on who made the first move at the bottom of the driveway, I am unable to find as a fact that Jason Billing was the initial and, more importantly, the sole aggressor at the start of the altercation involving Kevin Markland. The evidence does not satisfy me beyond a reasonable doubt that after being called a "goof", Jason Billing returned to his vehicle, grabbed a knife, moved up the driveway toward Mr.

Markland and proceeded to launch an unprovoked attack on him. [ 17 ] This is the version of the facts that is advanced by the Crown. It is in dispute and to sentence Jason Billing on the basis of an unprovoked attack, I must be satisfied of this fact beyond a reasonable doubt. [ 18 ] The witness who drove by the residence described the splashing and pushing and shoving between the two men as simultaneous, close to the sidewalk. This description is inconsistent with Kevin Markland's testimony that Jason Billing came aggressively toward him in the driveway, with knife in hand, and that he threw gas on Mr.

Billing solely in response to, and for the purpose of, defending himself. [ 19 ] It is also inconsistent with the testimony of Kim Markland, who said that Jason Billing went back to his car, searched for something and then moved toward Kevin Markland in the form of a running body check. [ 20 ] Both of these witnesses have criminal records, with prior convictions for offences of dishonesty, and there were inconsistencies in their evidence, including inconsistencies between their testimony at trial and the evidence they provided under oath at the preliminary inquiry.

The jury was provided with a modified Vetrovec instruction for both Kevin and Kim Markland. Where their evidence on how the altercation started conflicts with the evidence of the independent witness who drove by the residence, I prefer his evidence. [ 21 ] However, I am satisfied on the evidence in its totality, and find as a fact, that donning a knife and stabbing Kevin Markland six times was neither necessary nor reasonable in all the circumstances. [ 22 ] As noted, four of the stab wounds were to the back. At trial, Mr.

Billing had no explanation as to why the wounds were in the back. [ 23 ] He testified that Kevin Markland threw gas on him; hit him in the head with the gas can; and then, in response, Mr. Billing began "flail thrusting", unable to see because of gas in his eyes. He described a face-to-face encounter with Kevin Markland from beginning to end, with random thrusting of the knife in defensive mode. I do not believe his evidence on this point. I do not find Mr.

Billing to be a credible witness. [ 24 ] Instead, I am satisfied beyond a reasonable doubt, and find as a fact, that once the altercation started, Jason Billing intentionally and purposefully stabbed Kevin Markland and continued to do so until Mr. Markland's back was up against a fence. It was only then that Mr. Billing ceased his assault and went back to his car. He made no effort to retreat before that point. The amount of force he used against Kevin Markland, and the manner in which it was delivered, was disproportionate. I also find that Mr.

Billing's conduct during the assault was driven primarily by anger, consistent with his behaviour when driving past the residence early in the morning and his interaction with Kim Markland when he first arrived at the house in Richmond. [ 25 ] I accept the evidence of Kevin Markland on how the matter unfolded once the physical altercation began with Mr. Billing. He

said that Jason Billing put his hand on the victim's shoulder and walked him in to the knife, more than once. He felt like he was being punched in the ribs and was trying to get away from Mr. Billing, but did not have the energy to do so. Kevin Markland's articulation of what unfolded after the two men first came together is consistent with the medical evidence on the nature of the wounds sustained by him, their severity and their location. It finds independent corroboration in the medical evidence. B.

Breaches of Non-Communication Order [ 26 ] The circumstances of these offences are not in dispute. [ 27 ] After Mr. Billing was arrested for the offence of aggravated assault, he had a judicial interim release hearing and was released on bail. This occurred on July 7, 2016. [ 28 ] Between the date of his arrest and July 7, a Judge of the Provincial Court made an order under s. 516(2) of the Code that Mr. Billing abstain from communicating directly or indirectly with a number of people, including his mother, Bonnie Specht, and his girlfriend, Ashley Woods. [ 29 ] Notwithstanding this order, Mr.

Billing called both women from the Surrey Pre-trial Centre. In accordance with usual practice, these calls were monitored and recorded by provincial Corrections. Calls occurred in violation of the order on June 28, June 29, June 30, July 1, July 2 and July 4. There were 13 calls in total. [ 30 ] A number of different topics were discussed in the calls. This included the ongoing criminal proceedings and whether the women would, or should, give statements to police or attend court. A suggestion was made by Mr.

Billing that they change their phone numbers, or obtain a second phone line, so that he could call them and not be breached. III. VICTIM IMPACT [ 31 ] Kevin Markland declined the opportunity to file a Victim Impact Statement as facilitated through s. 722(1) of the Code . The Court has been advised that Mr. Markland has fully recovered from the stabbing injuries. [ 32 ] I note that his recovery was not immediate. At trial, Mr. Markland testified that after the incident, he suffered nightmares; was sore; had a hard time breathing; and, it took a long time to get his reach back. It hurt when he coughed.

I accept this evidence in light of the nature of the wounds sustained by him. IV. AGGRAVATING and MITIGATING CIRCUMSTANCES [ 33 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 , Criminal Code . [ 34 ] In determining what constitutes a proportionate sentence, the Court must have regard to aggravating and mitigating circumstances. This is made clear by s. 718.2(

a) of the Code: "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender". [ 35 ] On the facts of this case, I find the following aggravating circumstances: • the use of a weapon; • significant injury to the victim, Kevin Markland, that wounded him and endangered his life.

He required surgery due to a punctured lung and a portion of his lung had to be removed; • Jason Billing has a substantial criminal record; • this includes at least 14 prior convictions for violent offences: assault, assault with a weapon, criminal harassment, robbery, use of an imitation firearm and uttering threats; • Mr.

Billing also has at least 14 prior convictions for breach of court order (probation) and/or obstructing justice; • he has received jail sentences in the past, including 15 months' imprisonment in 2004 for various offences of violence; • at the time of the aggravated assault, Jason Billing was on probation; and, • he committed multiple breaches of the non-communication order within a short time, and, while doing so, encouraged the witnesses to find ways in which to circumvent the order. [ 36 ] There are no mitigating circumstances in this case, within the meaning of s. 718.2(

a) of the Code . [ 37 ] Counsel for Mr. Billing argues that his client's acknowledgement that he was responsible for the stabbing assisted with a more focused approach at trial and should be treated as a mitigating circumstance. [ 38 ] Within the context of this particular case, I do not agree. There is no indication that this admission saved time and expense in

any material way, or that it avoided the necessity of witnesses having to testify. Identity was not a substantive issue here. Mr. Billingwas known to both Kevin and Kim Markland. V. OFFENDER'S ANTECEDENTS [39] A pre-sentence report has been produced. [40] It describes a childhood that involved family violence, abuse, alcoholism, instability and psychiatric illness. Along with hissister, Mr. Billing was sexually abused by a cousin on a repeated basis. His mother reports that he has previously been prescribedmedication for Bi-Polar Disorder and Attention Deficit Hyperactivity Disorder. [41] Mr.

Billing is 36 years old. He has a grade 11 education; has been intermittently employed, largely in construction and as apainter; he has had many "pro-criminal" associates; and he has been using drugs and alcohol since he was a youth. He has a history ofpoly-substance use that includes marihuana, alcohol, cocaine, MDMA, heroin and anabolic steroids. He has never attended a residentialtreatment centre for any substantive period, but did complete substance abuse programming in 2009 and 2011. He has expressed a desireto live a drug-free lifestyle. [42] While incarcerated, Mr.

Billing reconnected with his faith as a Jehovah's Witness and has been attending weekly bible studysessions since October 2016. [43] He has a nine-year-old daughter, but has not seen her since she was approximately one year of age. Mr. Billing is in arelationship with Ashley Woods, who also has a history of substance abuse. She is now in the third month of her own "recovery". Ms. Woods has provided a letter in support of Mr.

Billing, indicating how much she values his role in his life, the support he gives to her,and she expresses a desire for the two of them to work through their issues together. [44] As noted, Jason Billing has a fairly extensive criminal record. According to my calculation, he has approximately 44 priorconvictions. A number of the prior offences involve domestic violence. Sentences imposed have included probation. The writer of thepre-sentence report says Mr. Billing has a very poor record of complying with these orders.

Indeed, when released on bail for the chargeof aggravated assault, his bail included a term that he reside at Luke 15 House, which is a community-based recovery program. He wasdischarged four days later, following allegations that he consumed crystal methamphetamine and heroin while residing there. He wastaken back into custody. [45] Mr. Billing has completed various programs while in custody and on community supervision. This programming has notprevented him from re-offending. A number of his prior offences were committed while he was subject to probation or some other formof court order. VI.

SECTION 718.2(e) [46]

Section 718.2(

e) of the Code provides that when imposing sentence, all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered, with particularattention to the circumstances of Aboriginal offenders. [47] In R. v. Ipeelee; Ladue, 2012 SCC 13, the Supreme Court re-affirmed that s. 718.2(

e) is a "remedial provision designed toameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges tohave recourse to a restorative approach to sentencing": at para. 59, citing R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [48] In sentencing an Aboriginal offender, the Court must consider: (

a) the unique systemic or background factors which may haveplayed a

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

b) the types of sentencing procedures and sanctionswhich may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection:Ipeelee, at para. 59. [49] When considering "unique systemic or background factors", the Court must take judicial notice of: [60] … such matters as the history of colonialism, displacement, and residential schools and how that history continues to translateinto lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course highlevels of incarceration for Aboriginal peoples: Ipeelee, at para. 60. [50] The Court must also consider any "individualized information" about the accused person as an Aboriginal offender: Ipeelee, atpara. 60. [51] Paying close attention to both systemic and individualized factors allows the Court to better achieve a sentence that isproportionate to the gravity of the offence and the degree of responsibility of the offender.

"Many Aboriginal offenders find themselvesin situations of social and economic deprivation with a lack of opportunities and limited option for positive development … the reality isthat their constrained circumstances may diminish their moral culpability": Ipeelee, at para. 73. [52] It is not necessary that the offender establish a "causal link" between these background factors and the index offence before theremedial impact of s. 718.2(

e) is brought to bear: Ipeelee, at para. 81. This is true even for "serious or violence offences": Ipeelee, atpara. 84. "Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they providethe necessary context to enable a judge to determine an appropriate sentence": Ipeelee, at para. 83. [53] Sentencing judges have a positive duty to apply s. 718.2(

e) in all cases: Ipeelee, at para. 85. A failure to do so constitutes an

error that justifies appellate intervention: Ipeelee, at para. 87. [54] A Gladue Report was completed in this case. Mr. Billing's mother is of Métis descent. Her father was Métis. She had nocontact with him until she was an adult. However, while she was still quite young, her mother married a former residential schoolsurvivor. Ms. Specht said her stepfather "used to beat [her] whenever he got angry".

He also began to sexually molest her as a youngchild and this continued until she ran away when she was 15 or 16 years old. [55] Around that same time, she was diagnosed with depression and was committed to a psychiatric hospital or ward and receivedshock treatments. She left the facility with another patient who was an alcoholic and had mental health issues. She had two childrenwith him. She divorced him when she was 22 years old and discovered that he was molesting her daughter and hurting her son. [56] Ms. Specht then married Mr. Billing's father.

She told the Gladue Report writer that she consumed alcohol "heavily" during thefirst two trimesters of her pregnancy with Mr. Billing. Her husband was physically and emotionally abusive toward her and the children. Mr. Billing witnessed this abuse. The family lived in poverty. At age nine, Jason Billing wrapped a torn sheet around his neck andjumped out of the second story window of the family's home. His mother interceded. He was taken for a psychiatric assessment andprescribed Ritalin and anti-depressants (which his mother later stopped giving to him). [57] Mr. Billing's parents eventually separated.

Unable to deal with the trauma and chaos in his life, Mr. Billing reports that heturned toward other marginalized youth and became increasingly involved in substance abuse and criminal activity. Ultimately, harddrugs and crime became his lifestyle. He reports that drug use has consistently interfered with most aspects of his life and has played asignificant role in his offending pattern. While incarcerated awaiting trial and sentencing, he registered with the methadone maintenanceprogram. [58] Mr. Billing states that in 2012, he was diagnosed with Bi-Polar Disorder. For the last several years, Mr.

Billing has receivedgovernment benefits as a Person with Disability. He has supplemented this income through seasonal employment and involvement incriminal activity. [59] Bonnie Specht did not raise Mr. Billing within the Métis culture. Nor does he have a connection with the community. In fact,Mr. Billing told the writer of the Gladue Report that he is substantially unaware of his parents' background or family history. [60] Recently, he has expressed a growing interest in his Métis background and the benefits of a spirituality-based approach tohealing.

He has been provided with registration and contact information for the provincial office of Métis National British Columbia(MNBC), located in Surrey. This is a first step to accessing possible educational, vocational and cultural supports once his family'sMétis lineage is corroborated. [61] Although Mr.

Billing is alienated from Métis culture, the community and its traditions, the writer of the Gladue Report observesthat his life nonetheless manifests a "number of adverse factors that affect Aboriginals in general". [62] This includes (but is not limited to): • multi-generational substance abuse; • familial fragmentation; • early exposure and introduction to violence and criminality; • childhood sexual victimization; • early introduction to and a subsequent chronic personal history of substance use; • lack of educational attainment resulting in unemployment, low income, poverty, addiction, and criminal involvement; and, • intergenerational effects flowing from colonization – dislocation from traditional family supports has resulted in a loss of culturalidentity and connection to the Métis community, loss of language, values, culture, ancestral knowledge, and traditional family andcommunity support mechanisms.

VII. RANGE of SENTENCE [63] Although sentencing is an inherently individualized exercise, s. 718.2(

b) of the Code stipulates that sentences "should be similarto sentences imposed on similar offenders for similar offences committed in similar circumstances". [64] The Crown says that the accepted range of sentence for aggravated assault is between 16 months and 6 years' imprisonment. Defence counsel does not disagree. Indeed, this range was endorsed as "correct" in R. v. Nguyen, 2016 BCCA 408, at para. 47. [65] In R. v.

Johnson (1998), (BC CA), 131 C.C.C. (3d) 274 (B.C.C.A.), it was noted that: [10] Sentences at the lower end of the range [for aggravated assault] tend to be imposed in "fight" situations in which the altercationescalates and results in injuries to the victim. Sentences at the higher end of the range tend to be imposed in situations where the victimsare attacked with a weapon, without provocation and without any opportunity to defend themselves. [66] The Crown argues that in this case, a sentence in the higher end of the range is appropriate in light of the aggravating factors;namely, four to five years.

[ 67 ] However, in response to a question from the Court, Crown Counsel clarified that this position assumes a factual finding that the attack on Kevin Markland was unprovoked. If the Court is not satisfied that Mr. Billing was the sole aggressor during the altercation, then a sentence in the range of three to four years would not be inappropriate. Again, the higher end of this range is emphasized. [ 68 ] As noted, the trial evidence does not convince me that the attack against Kevin Markland was unprovoked.

However, I have concluded that donning a knife and stabbing Kevin Markland six times, including four stab wounds to the back, was neither necessary, nor reasonable in all the circumstances. In light of this conclusion, I will treat the Crown's position on sentence for the aggravated assault as three to four years. [ 69 ] The parties put a number of sentencing cases before me. I have reviewed them. I do not consider it necessary to set them out in detail. [ 70 ] However, I will identify the cases that I consider most instructive in determining a fit sentence for Mr. Billing: (

a) R. v. Grant , 2016 BCSC 2588 Four years' imprisonment for one count of aggravated assault (a stabbing), that occurred during the course of a robbery. The victim was known to the offender. He suffered multiple trunk and extremity stab wounds. Concurrent sentences were imposed for companion offences. The offender was 38 years old with a grade 10 education. His biological parents suffered from substance abuse issues; he experienced behavioural problems as a youth; was intermittently employed as an adult; and, as a result of a head injury, he was designated a Person with Disability. Mr.

Grant struggled with drug addiction, including heroin, cocaine and crystal methamphetamine. He was the father of two teenage boys, but had limited contact with them. He had a criminal record, including three prior convictions for assault. Protection of the public, deterrence and denunciation were the paramount principles at sentencing. (

b) R. v. B.G.P. , 2006 BCCA 215 Three years imposed for one count of aggravated assault (a stabbing). The offender went to the victim's home to collect a drug debt. When the victim stepped toward him, the offender drew a knife and slashed the victim at stomach level from the back to the front of his body along his left side. The wound was nine inches long and deep enough to expose internal organs. Without prompt medical attention, the victim would have died. The offender was 29 at the time of the offence. He grew up in circumstances of neglect, physical and substance abuse.

He began to use alcohol and drugs while a youth and became a member of a youth gang. He had a grade 9 education and a daughter from a prior relationship. He had an extensive criminal record, particularly as a youth, with a prior conviction for aggravated assault. As an adult, he had prior convictions for robbery, assault and weapons offences. He frequently indulged in criminal activity to service his drug addiction. He was non-compliant while on probation. Although he did not assert self-defence at trial, he characterized the victim as the initial aggressor to the person who prepared a pre-sentence report.

The offender made good rehabilitative progress post-arrest for the offence. Without this progress, a four year sentence would have been imposed. (

c) R. v. Lagimodiere , 2013 BCCA 174 Four-year sentence for one count of aggravated assault. The 57-year-old Aboriginal offender knew the victim. He applied force while the latter was severely intoxicated, causing a fractured dislocation of his spinal column. The victim was rendered paraplegic and is unable to use his legs. The offender's mother was an alcoholic, resulting in him spending time in foster care during his childhood. He also fell into a pattern of alcohol abuse that plagued him throughout his life. He is of M é tis descent, although not connected to the community in any substantial way.

The offender sustained two significant head injuries, leaving him with cognitive deficits and deficits in his executive functioning. He had a significant criminal record, with 39 prior convictions. This included prior convictions for assault. A Gladue Report was prepared. The trial judge imposed a five-year sentence. It was reduced on appeal to four years. The Court of Appeal found that the offender's "very difficult upbringing" included "many of the characteristics of aboriginal experience in Canada": at para. 18. [ 71 ] In support of the defence position, Mr.

Billing's counsel has referenced cases involving Aboriginal offenders for which a community-based disposition was imposed ( R. v. Hansen , 2014 BCSC 625 ), or where the term of imprisonment was substantially less than the ones referenced above ( R. v. Paquette , 2012 BCSC 1497 ). [ 72 ] I have reviewed these cases. In my view, they are distinguishable. In Hansen , the offender's prior criminal record consisted of only one conviction, and it was for a non-violent offence.

In Paquette , the offender pleaded guilty to the offence of aggravated assault; had not offended for five years; and, there was almost four years of successful compliance with community-based supervision between the date of the offence and sentencing. VIII.

DISPOSITION [ 73 ] In the circumstances of this case, I conclude that a fit sentence for the aggravated assault against Kevin Markland is three years' imprisonment. [ 74 ] In reaching this conclusion, I have taken into account the aggravated factors, including the use of a knife; the very serious nature of the assault and wounds inflicted on Kevin Markland; and the fact that Jason Billing has a substantial criminal record, including multiple convictions for offences of violence. The principles of general and specific deterrence, as well as denunciation loom large in this case. It is also of significance that Mr.

Billing was on probation when the offence was committed. [ 75 ] At the same time, I am satisfied that even though Mr. Billing is not presently connected to the M é tis community, and he was not raised within the M é tis culture, the Gladue Report reveals a personal history that reflects, and is not inconsistent with, the intergenerational effects flowing from colonization.

[ 76 ] This factor is relevant to an assessment of Jason Billing's moral blameworthiness for the offence. Although it is not of sufficient weight to justify a sentence of time-served, I do consider it a circumstance that warrants a sentence in the mid-range for aggravated assault. This is particularly so in light of my factual finding that Mr. Billing was not the exclusive aggressor at the start of the incident with Kevin Markland.

Without the reduced moral blameworthiness, I would have considered a term of four years' imprisonment to be appropriate. [ 77 ] Jason Billing has argued for a community-based disposition. He has declared a desire to move away from a lifestyle of drugs and criminal activity and to actively engage in treatment-based intervention. His mother is supportive of him. His girlfriend, Ashley Woods, has also indicated her support. [ 78 ] Mr. Billing has been confirmed for acceptance into a recovery house in Surrey ("It's Up to You").

This is a 20-bed facility that provides support and addictions recovery to persons who are emerging from the court system. The program focuses on providing relapse prevention, harm reduction support and education for the purpose of detoxification. It is not a residential treatment centre. Mr. Billing is in the process of making enquiries about the availability of the latter. [ 79 ] Based on Mr.

Billing's history while on bail and probation, I have no confidence that if he is immediately released into the community, he will comply with the terms and conditions of the order made, including any order that he reside at the recovery house in Surrey and stay away from non-prescription drugs. He has an extensive history for non-compliance with court orders. In fact, he stands convicted of two new breaches in this case. Further custodial time is required to bring home to Mr. Billing the serious consequences for offending in the manner that he has.

It is also necessary for protection of the public. [ 80 ] The programming available to him while in custody will provide an important and necessary basis for intervention in reducing his risk. Both the provincial and federal correctional centres in British Columbia offer programming that addresses the kinds of issues that likely require intervention in Mr. Billing's life, including: violence prevention; substance abuse; and assessment and treatment for possible brain-based disabilities. [ 81 ] I appreciate that both his mother and Ashley Woods have pledged their support for Mr. Billing.

However, his re-offending was not curtailed in the past when he lived with his mother. Ms. Woods has her own substance abuse issues that need to be effectively addressed, and although her current attempts at recovery are laudable, I am not satisfied that her presence in Mr. Billing's life would have the ameliorative impact that both suggest. At least not at present. [ 82 ] Based on the material before me, Mr. Billing's mother appears to agree. She expressed concern to the writer of the pre-sentence report about Ms. Woods' continued involvement in her son's life.

In his conversations with the author of the Gladue Report , Mr. Billing characterized his relationship with Ms. Woods as volatile and unstable. His mental health issues, their shared misuse of substances, and an inability to effectively communicate their emotional needs to each other contributed to the instability. [ 83 ] More importantly, in my view, a sentence of time-served for Jason Billing, on all three offences, would constitute a demonstrably unfit sentence. It would not give adequate effect to the gravamen of the aggravated assault and breaches of court order, particularly in light of Mr.

Billing's substantiated criminal history for violence and the pattern of disrespect for court orders he has demonstrated thus far. [ 84 ] Accordingly, on the one count of aggravated assault (Indictment 27132-2), I impose a sentence of three years' imprisonment (1,095 days). Jason Billing is entitled to receive 527 days of pre-sentence credit.

For the aggravated assault, he is therefore sentenced to a further 568 days in prison. [ 85 ] On the two counts of non-compliance with a court order (Indictment 27248-2), I impose a sentence of 162 days' imprisonment on each count, concurrent to each other, but consecutive to the sentence for aggravated assault. [ 86 ] Cumulatively, these jail terms amount to 730 days running from the date of the Reasons for Judgment . The custodial sentence left to serve will put Mr. Billing into the federal correctional system. Programming tailored to Aboriginal offenders is available there. [ 87 ] In light of Mr.

Billing's history, including his struggles with substance abuse and the acknowledged role that these struggles play in his risk of re-offending, I consider it appropriate that each of the sentences for breach of court order are followed by three years of probation to provide the supervision, structure and community-based assistance he requires to rehabilitate and effectively manage his risk factors. [ 88 ] Pursuant to ss. 731(1) and 732.1 of the Criminal Code , the three-year probation order shall contain the following terms and conditions: 1. Keep the peace and be of good behaviour. 2.

Report within 72 hours of your release to a probation officer at 210 – 7577 Elmbridge Way, Richmond B.C. and thereafter as, when and how directed by a probation officer or correctional officer. 3. Reside as directed by your probation officer and do not change your address without the prior written permission of your probation officer. 4. You are to appear before the court when required to do so by the court. 5. You are to have no contact or communication, directly or indirectly, with: a. Kevin Markland b. Kim Markland

c. Travis Grosul d. Kanwarsher Randhawa, and e. Grant Bryan 6. You are not to attend at the residence, place of employment or place of education, if known to you, of: a. Kevin Markland b. Kim Markland c. Travis Grosul d. Kanwarsher Randhawa, and e. Grant Bryan 7. You are to attend, participate in and successfully complete any programs and counselling as directed by your probation officer, which may include programs for substance abuse management and violence prevention. 8.

Having consented, you must report to the Forensic Outpatient Clinic, or other clinic or program specific to mental health, at a time and location specified by your probation officer, for assessment, treatment and counselling. 9. Having consented, you must attend all scheduled medical appointments and take all medication prescribed to you. You must tell your treating physician to provide your probation officer with the physician's name, address, and contact number for the specific purpose of exchanging information on whether you have breached any terms of this Order. 10.

Do not possess or consume any alcohol, intoxicants, or drugs as defined by the Controlled Drugs and Substances Act , save as authorized by law. 11. You are not to be in possession of any weapons as defined by the Criminal Code . 12. You are not to possess any knives, except while preparing or consuming food or at your place and for the purposes of legitimate employment. [ 89 ] There are a number of ancillary orders to address, none of which have been opposed by Mr.

Billing. [ 90 ] Pursuant to s. 743.21 of the Code , and during the custodial portion of his sentence for all three offences, Jason Billing is not to communicate, directly or indirectly, with the following persons: Kevin Markland; Kim Markland; Travis Grosul; Kanwarsher Randhawa; and Grant Bryan. [ 91 ] Pursuant to s. 487.051, I authorize the taking of a bodily substance from Jason Billing for the purpose of the national DNA databank.

Aggravated assault is a primary designated offence under the Code . [ 92 ] Pursuant to s. 109(3) of the Code , Jason Billing is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for life. He is furthermore prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 93 ] Finally, pursuant to s. 737(2) (

b) of the Criminal Code , Mr. Billing shall pay a victim fine surcharge in the cumulative amount of $600.00. He has been convicted and sentenced for three offences punishable by indictment. "DeWitt-Van Oosten J."