R. v. Johnson, 2017 BCSC 1240

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Johnson, 2017 BCSC 1240 Date: 20170303 Docket: 23341-1 Registry: Smithers Regina v. Kelly Andrew Johnson Before: The Honourable Madam Justice Donegan Oral Reasons for Judgment on Sentence Counsel for the Crown: N. Purewal Counsel for the Accused: J. McCarthy Place and Date of Trial/Hearing: Smithers , B.C. March 2, 2017 Place and Date of Judgment: Smithers, B.C. March 3, 2017 INTRODUCTION [ 1 ] THE COURT: Kelly Andrew Johnson has entered a guilty plea to manslaughter in relation to the death of Francis Namox, a stranger to Mr. Johnson.

Both heavily intoxicated by alcohol at a house party on February 7, 2014, the two men argued. Mr. Johnson stabbed Mr. Namox with a knife a single time in the side of his body causing his death. [ 2 ] I am now to determine the appropriate sentence in this terrible and tragic case. The Crown seeks a period of imprisonment of four years.

The defence seeks a sentence of two years less a day imprisonment to be followed by a three-year probation order. [ 3 ] I have before me a considerable body of evidence including an agreed statement of facts, a pre-sentence report with a Gladue component prepared by a probation officer, a psychological assessment report prepared by Dr. Stangeland, scene photographs, an autopsy report prepared by a forensic pathologist, Dr. Stephen, numerous victim impact statements, and community impact statements, and Mr. Johnson's history of criminal convictions.

Between them, counsel have provided 20 case authorities for my consideration and, yesterday, provided very helpful and comprehensive submissions. CIRCUMSTANCES OF THE OFFENCE [ 4 ] Mr. Johnson was originally charged with second degree murder. Several months ago, the Crown accepted his guilty plea to the offence of manslaughter as a result of his extreme intoxication by alcohol at the time of the offence. I accept it was Mr. Johnson's intoxication which would not allow the Crown to establish beyond a reasonable doubt that Mr.

Johnson had the specific intent required for murder. [ 5 ] The circumstances of this offence are set out in the Agreed Statement of Facts. Further information about Mr. Johnson's activities both before and after the offence are revealed through Mr. Johnson's interview with Dr. Stangeland, as contained in his report. [ 6 ] On February 7, 2014, a number of young people congregated at a residence in Smithers. While some young people congregated there in the afternoon to socialize, it was not until the evening that the victim, Mr. Namox, arrived. Everyone was drinking and partying.

Later in the evening, three of the party guests left the residence to buy more alcohol. One of those guests was Mr. Johnson's cousin. When they all returned to the residence, they brought Mr. Johnson with them. [ 7 ] Mr. Johnson had been working at the time as a line chef at a restaurant in Smithers. He was working there that day. He got off work at approximately 9:00 p.m. and went to a liquor store and purchased a bottle of rum. At that point in his life, Mr. Johnson did not care how much he drank. He was 21 years of age. It was his general objective to get very intoxicated when he drank at that time. Mr.

Johnson brought his backpack with him to the party. Inside his backpack was a container holding his knife set that he used in his work. He was, I am told, required to take his knife set home with him at the end of his work day. [ 8 ] As the night wore on at the party, various partygoers at various times passed out, blacked out, or fell asleep. Many of the

partygoers were drinking and were intoxicated, including Mr. Johnson and Mr. Namox. [ 9 ] Mr. Namox awoke at the party at approximately 11:30 p.m. He and Mr. Johnson began arguing over the remaining few ounces of alcohol. A few other people stood in a circle with Mr. Namox and Mr. Johnson as the two men argued. The argument became heated. Mr. Johnson went to his nearby backpack and grabbed a knife from within it. One witness saw that, at this time, Mr. Namox pulled out a small knife that fit into the palm of Mr. Namox's hand. [ 10 ] Mr. Johnson stabbed Mr.

Namox one time in the side of his body with the knife and then fled the scene. He left the knife behind. Police were called at 11:35 p.m. When they arrived, Mr. Namox was found on the ground with a stab wound to his chest. Paramedics arrived at 11:42 p.m. to find Mr. Namox unresponsive. He was taken to hospital and pronounced dead approximately 30 minutes later. [ 11 ] The autopsy report proves that Mr. Namox died from the single stab wound to his left chest he suffered at the hand of Mr. Johnson.

This stab wound injured two ribs, completely transecting the sixth rib, and partially incising the seventh rib, wounded the left lung, and penetrated Mr. Namox's heart causing his death. [ 12 ] Mr. Johnson was located by police and arrested at 11:47 p.m. that same night. He was intoxicated. Mr. Johnson does not recall the argument he had with Mr. Namox or stabbing him, reporting to have “blacked out” from the consumption of alcohol. He recalls waking in a cell at the police station with no recollection of what brought him into custody. Mr. Johnson had never met Mr. Namox before this night.

THE EFFECTS OF THE OFFENCE [ 13 ] Mr. Namox had his life abruptly and violently ended when it was only just beginning. He was only 27 years old. He had a large and closely-knit family and circle of friends. He had a girlfriend, Shauna Shaw, and a very young son, Aiden. I received a written victim impact statement from his mother, Martina Namox. She read her statement to the court with Shauna and Aiden by her side. Mrs.

Namox very bravely and very eloquently described, in so far as words can describe, the profound emotional, psychological, physical, and financial impacts upon her, her family, Shauna, Aiden, and others. Their grief will remain with them for the rest of their lives. [ 14 ] I have also received written victim impact statements from Mr.

Namox's stepfather, Victor Williams; his five-year-old son, Aiden; his sister, Janeane Pascal; his grandmother, Betty Joseph Pete; his brother, Carl Namox; his sister-in-law, Tamara Innes, if I am pronouncing that properly; his eight-year-old nephew, Karl Namox; his five-year-old niece, Jennifer; his girlfriend and mother of his child, Shauna; his aunt, Loralee Nikal; his uncle, Barry Nikal; his cousin, Denee Frank James Austin; his aunts, Virginia Pierre, Debbie Pierre, Bertha Pierre; his friend, Lyle Michelle; his uncle, Jeffrey Namox; his cousin, Dianna Johansen; his friend, Gemma Evans; his sister, Ruth Namox; his uncle, James Namox; and his cousin, Caroline Hall.

I have also received community impact statements from Ron Mitchell and Birdy Market. I have taken some considerable time to thoroughly read all of these statements. [ 15 ] My words cannot and will not adequately convey the eloquence of all of these letters. While his family and friends knew Mr. Namox in sometimes different ways, these letters have common and consistent themes. By all accounts, Mr. Namox was a good hard- working young man. He was a good father, spouse, son, grandson, brother, uncle, nephew, and friend who was involved positively with his family and his community.

His absence leaves a gaping hole, a wound, in the lives of everyone he touched and in his community. This wound has created depression, anxiety, anger, isolation, disconnection, substance misuse, even suicidal thoughts or attempts by those closest to him. [ 16 ] As put by Birdy Market in her statement, Mr. Namox will never be able to reach his full potential of becoming a community or clan leader and his loss will be keenly felt by all of the community, including the elders. As put by many of the writers of the statements, Mr.

Namox will never provide the guidance and be the positive influence that he would have been for his son. [ 17 ] It is clear that this offence has created negative effects not only for the family and friends of Mr. Namox, but the general community, as well. It has disturbed the confidence members in the community have in one another and has generated fear and mistrust. MR. JOHNSON’S BACKGROUND [ 18 ] Mr. Johnson is currently 24 years of age. His parents are Dawn Johnson and Fabian Alfred. He is of Aboriginal descent and is a member of the Selkirk First Nation in Fort Selkirk, Yukon Territory.

Selkirk First Nation is a rural community of Pelly Crossing, the halfway point between Whitehorse and Dawson City. The citizenship population of Fort Selkirk is approximately 671 members with 40 percent living in Pelly Crossing and 60 percent residing elsewhere in the Yukon and Canada. [ 19 ] The clans of Selkirk First Nation are Wolf and Crow. Mr. Johnson belongs to the Crow Clan. The Selkirk People hold strong to their culture. They continue to practice their traditions with fish camps, hunting camps, teaching their language in school, and many other activities. Mr.

Johnson has not yet had the opportunity to enjoy those experiences. [ 20 ] Mr. Johnson's mother was placed in foster care early in her life as a result of neglect. She lived with Mr. and Mrs. Ford, persons that Mr. Johnson views as his grandparents, until she was approximately 22 years old. [ 21 ] Mr. Johnson lived with his parents until he was two years old when his mother was forced to flee the home to Kamloops, British Columbia, with him to escape the physical abuse perpetrated upon her by Mr. Johnson's father. Mr.

Johnson actually witnessed an incident of violence at a young age where his father held a knife to his mother's throat. [ 22 ] While in Kamloops, Mr. Johnson and his mother survived with Mrs. Johnson occasionally working, but mainly on social assistance. There was not much alcohol consumption in their home while Mr. Johnson was growing up. His mother was born with fetal

alcohol spectrum disorder and did not use alcohol or drugs. Mr. Johnson reports that his mother was nurturing, but that her condition affected her ability to administer discipline and structure in the house. [ 23 ] Mr. Johnson's mother entered a new relationship with Albert Johnson (no relation to the offender), when Mr. Johnson was eight years old. This lessened the financial stress on the family and produced a brother and sister for Mr. Johnson. His mother's relationship with his stepfather ended after about six or seven years and his stepfather left the home. Mr.

Johnson remains close with his mother and his siblings to this day. He really has no contact with his biological father. [ 24 ] It was around the time that his stepfather, the disciplinarian in the home, left that Mr. Johnson's behaviour began to deteriorate. Mr. Johnson began to use alcohol at the age of 12 or 13. He drank more and more over time. He acknowledges that his mother had little to no control over him. [ 25 ] Mr. Johnson reports having visited Fort Selkirk when he was approximately 13 years old and he does wish to eventually visit again.

He currently has no connection to that community and knows little about it, but does know his grandmother. He is aware of alcoholism in Fort Selkirk and its limited resources. He understands that at least one of his family members, he believes his grandfather, attended residential school there. [ 26 ] In June of 2007, when he would have been about 14 years old, Mr. Johnson was convicted of assaulting a peace officer and wilfully resisting or obstructing a peace officer. He did this while he was intoxicated.

He received a sentence consisting of a six-month intensive support and supervision order followed by six months' probation. What followed thereafter was a series of convictions as a youth spanning from 2008 through April of 2011 for failure to comply with court orders. I count 11 such convictions. He was also convicted in March of 2009 with taking his mother's vehicle without her consent.

Any jail sentences he received during that timeframe were of very short duration. [ 27 ] While he was under community supervision during his teenage years as a result of all of these convictions, he became involved with six or seven different counsellors provided to him through Youth Forensics. He had the benefit of a positive one-to-one worker who took him to do healthy and pro-social activities in the community. [ 28 ] However, while in Kamloops, Mr. Johnson was not a motivated student. He failed grade 8 and did not attend school for what would have been his grade 9 year.

He did attend Four Directions Store Front School, but put in minimal effort at first. When he finally did apply himself, he graduated from high school on time in 2010. [ 29 ] Mr. Johnson moved away from Kamloops in 2010. He went to live with his aunt in Smithers as a result of Youth Court Order which banned him from residing or attending Kamloops. Mr. Johnson candidly acknowledges that he had, while in Kamloops, been actively recruited by a gang called the Red Alert. Although he did not become a member, he was given drugs to sell by that gang.

He did sell some of those drugs and consumed some of them himself with friends. Mr. Johnson reports having to do some "other stuff" for the gang in order to pay back a drug debt, but he would not explain what that "other stuff" was. [ 30 ] In terms of drug use, Mr. Johnson used hallucinogenic mushrooms in his youth occasionally, marihuana regularly from the age of 13, ecstasy heavily when he was 15 or 16 years old, and cocaine for a time when he was 19. His heavy alcohol use persisted throughout his teens and early 20s right up until the night of the offence.

He has never been involved in any alcohol or drug treatment program, except one as a teenager. He was referred to a treatment program through Probation Services, but asked to leave one or two months early after he went to the program intoxicated by drugs on one occasion and intoxicated by alcohol on another. [ 31 ] Mr. Johnson lived with his aunt in Smithers for two or three years, during which time he was employed at various restaurants, and paid her rent.

He moved out and moved in with his current partner, Alanna Tommy, and her mother in Moricetown and lived with them until the offence occurred on February 7, 2014. [ 32 ] Mr. Johnson was arrested on February 7, 2014. He remained in pre-trial custody until he secured his release on March 10, 2014. He was released on bail with a number of strict conditions, including that he reside with his sureties, Mr. and Mrs. Ford, in Fort St. James. Mr. Johnson views the Fords, as I have said, as his grandparents.

He was close to them during his childhood and has lived with them for the nearly three years that he has been on bail. [ 33 ] The terms of his release were varied slightly from time to time since his release on March 10, 2014, but they remained strict and its terms numerous. I will only highlight a few of the terms: Mr. Johnson was required to remain in his residence at all times, except for when he was working or in the company of certain designated people.

He was required not to consume alcohol or drugs; he was required to stay away from certain people; he was required to stay away from the community of Smithers; and by consent, he agreed to provide a bodily sample when requested in order to determine his compliance with whether he had breached the no-alcohol and no-drug condition of his bail. [ 34 ] By all accounts, Mr. Johnson used his time on bail well. He has obeyed all of his conditions. He has not consumed alcohol or drugs. He initially had significant struggles with guilt and depression.

When he was first released on bail, he had thoughts of suicide and engaged in some self-harm. He has voluntarily attended counselling in Fort St. James, commencing only a couple of days after his release. He saw this counsellor through Northern Mental Health Services on a weekly basis for 2014. In 2015, his attendance lessened where he attended counselling about once a month. His last appointment was on October 7, 2016. The precise purpose and nature of this counselling is unclear from the materials, but it seems to involve general personal counselling to which Mr. Johnson has benefited. [ 35 ] Mr.

Johnson is grateful for his grandparents' help in allowing him to live with them for free while on bail. He is grateful for their support which has allowed him to obtain full-time employment in his chosen field and pay off debt. He has learned to manage money. He intends to pursue his Red Seal training in cooking to pursue a career as a chef when he is eventually released from custody. [ 36 ] Mr. Johnson has maintained a long-distance relationship with Ms. Tommy. The two of them have an infant child together. He intends to be an involved and supportive father. Mr.

Johnson will have some positive supports in the community when he is released from jail.

[ 37 ] Dr. Stangeland conducted a psychological assessment of Mr. Johnson in December of 2016. He found Mr. Johnson to be cooperative and forthright. He appeared to the doctor to be of average intellectual ability with logical and coherent thought processes. The doctor found that Mr. Johnson did not communicate any attitudes that rationalized or justified violent behaviour. [ 38 ] With the use of certain actuarial tools identified in the report and the information available to him, Dr. Stangeland opined that he would “be inclined to rate Kelly as presenting a low to low-to-moderate risk of future violence”.

Despite his youth record and the seriousness of his current offence, he writes: It is my impression that his risk for violence is directly related to issues of substance abuse. If he were to resume a pattern of substance abuse similar to what existed prior to this offence, I would elevate the estimate of risk to moderate or greater. [ 39 ] In reaching this conclusion, Dr. Stangeland identified four factors that might indicate a higher level of risk in this case. They are: 1. He has a historical conviction for assault; 2. He has a prior conviction for property crime; 3.

He has a history of marihuana dependence and extreme levels of alcohol abuse; and 4. He was very uncooperative with community supervision conditions as an adolescent. [ 40 ] Dr. Stangeland identified 18 factors that might serve to mitigate the risk of violence. They are: 1. He appears to be capable of maintaining stable intimate relationships; 2. He appears to have been employed on a fairly steady basis; 3. He claimed to have been abstinent from marihuana and alcohol for approximately 33 months; 4. He does not appear to suffer from a major mental illness; 5.

He does not appear to manifest a personality disorder; 6. He did not report an unusual history of trauma; 7. There was no indication of attitudes that rationalize or justify violence; 8. He appears to have been responsive to counselling opportunities; 9. He expressed a reasonable degree of insight into his difficulties; 10. There was no indication that he has violent intent; 11. There are no active symptoms of a major mental illness; 12. He does not appear to be particularly unstable in his mood and behaviour; 13. He is currently involved with mental health services; 14.

He does not appear to be unrealistic about his plans and aspirations; 15. He has a stable living situation; 16. He appears to have a reasonable degree of personal support available; 17. He has been attending for counselling and there is nothing to indicate that he has breached current conditions of his legal supervision order; and 18. He appears to be fairly capable of coping with stress and responsibilities. LEGAL FRAMEWORK [ 41 ] The seriousness with which Parliament views the offence of manslaughter is reflected by the maximum penalty of life imprisonment set out in the Criminal Code [ Code ].

This offence, however, carries no minimum sentence. Therefore, the range of sentence is from a suspended sentence to life imprisonment. [ 42 ] As many courts have recognized, manslaughter is an offence that can encompass very different factual matrixes from near accident to near murder. These differences explain why there is such a wide variance in the range of sentences that are imposed. My challenge in this case is to locate Mr. Johnson somewhere on that broad range. [ 43 ] The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a mathematical calculation.

Many courts have recognized that imposing a fit sentence in a serious case such as this is among the most challenging responsibilities a judge can undertake. It involves a careful balancing of a variety of factors in the context of a particular set of

circumstances in respect of a very particular offender. [ 44 ] This balancing is to occur within a framework and that framework is set out in s. 718 of the Code .

Section 718 of the Code sets out the fundamental purpose of sentencing as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 45 ]

Section 718.1 sets out that principle of proportionality. This principle is fundamental to sentencing. It provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 46 ] Other principles of sentencing that a court is to apply are set out in s. 718.2 of the Code . That

section reads: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances … This is often referred to as the principle of parity. (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 47 ] Recent Supreme Court of Canada decisions have explained many of these principles. I will discuss some of these decisions. [ 48 ] In R. v. Nasogaluak , 2010 SCC 6 , Mr.

Justice LeBel discussed generally the purpose and principles of sentencing as follows: The language in ss. 718 to [section] 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case … No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. [ 49 ] In respect of the principles of proportionality and parity, in R. v. Pham , 2013 SCC 15 , Mr.

Justice Wagner wrote at paras. 7-8: [7] …First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. … Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [8] In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process.

This Court has repeatedly emphasized the value of individualization in sentencing … Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances … as well as objective and subjective factors related to the offender’s personal circumstances. [ 50 ] In R. v. Lacasse , 2015 SCC 64 , the Court re-emphasized the principle of proportionality as a fundamental one.

It is to be determined both on an individual basis, that is, in relation to the accused [himself] or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. The concepts of individualization and parity of sentences must be reconciled for a sentence to be proportionate: Lacasse at para. 53 . [ 51 ] Madam Justice Stromberg Stein, as she then was, discussed the concept of moral blameworthiness in the principle of proportionality in R. v. Lilgert , 2013 BCSC 1329 at para. 31 :

[31]

Section 718.1 provides that any sentence imposed must be proportionate to the gravity of the offence and the degree ofresponsibility or moral blameworthiness of the offender. Determining moral blameworthiness includes an examination of the intentionalrisks taken by the offender, the harm he or she has caused, and the degree of deviation from acceptable standards of behaviour theconduct represents. This is set out in a number of decisions, including: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R 500; R.v. Bhalru, 2003 BCCA 645 at para. 28; and R. v.

Johnson (1996), (BC CA), 84 B.C.A.C. 261 at para. 32. … [52] In respect of denunciation and deterrence, Stromberg-Stein J. also wrote at para. 33: [33] At paragraph 45 of Bhalru, the court discusses the principle of denunciation as related to deterrence. Both are consideredpunitive.

The object of denunciation is to communicate "society's condemnation of that particular offender's conduct … [denunciation]satisfies a community's desire and need to condemn certain conduct, and also plays a more positive role in communicating andreinforcing society's shared set of values." However, at para. 46, the court noted: The punitive objectives of general deterrence and denunciation should not overwhelm the restorative objectives that are also embodied inthe new sentencing regime. [53] Retribution has a proper place in sentencing, but it is a concept that must be distinguished from vengeance.

This was made clearby the Supreme Court of Canada in 1996 in R. v. C.A.M. (SCC), [1996] S.C.J. No. 28, where Chief Justice Lamerwrote, in part, at paras. 77, 80 and 81: [77] It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminallaw.

As La Forest J. acknowledged in discussing the constitutionality of the dangerous offender provisions of the Criminal Code in R. v.Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 329: In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary accordingto the nature of the crime and the circumstances of the offender.

No one would suggest that any of these functional considerations shouldbe excluded from the legitimate purview of legislative or judicial decisions regarding sentencing. [Emphasis added.] This Court has since re-endorsed this passage on a number of occasions as a proper articulation of some of the guiding principles ofsentencing in a number of subsequent cases. See Luxton, supra, at p. 721; Goltz, supra, at p. 503; and Shropshire, supra, at para. 23. … [80] However, the meaning of retribution is deserving of some clarification.

The legitimacy of retribution as a principle of sentencinghas often been questioned as a result of its unfortunate association with "vengeance" in common parlance. See, e.g., R. v. Hinch andSalanski, supra, at pp. 43-44; R. v. Calder (1956), (MB CA), 114 C.C.C. 155 (Man. C.A.), at p. 161. But it should beclear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retributionas a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilizedsystem of sentencing.

See Ruby, Sentencing, supra, at p. 13. Vengeance, as I understand it, represents an uncalibrated act of harm uponanother, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminalcontext, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflectsthe moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle ofrestraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in TheEnglish Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to theoffender's deserts." [81] Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that ajudicial sentence properly reflect the moral blameworthiness of that particular offender.

The objective of denunciation mandates that asentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatoryelement represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basiccode of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App.

R.74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts canshow this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that ourcriminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasingthe cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values.

A sentence whichexpresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [54]

Section 718.2(

e) of the Code applies in this case. This requires a court, and I have already touched on this, to take intoconsideration that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders with particular attention to the circumstances of Aboriginal offenders. [55] The Supreme Court of Canada has provided guidance with respect to the application of this provision in two well-knowndecisions which both counsel discussed, R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13. Mr.Justice Romilly provided a

summary of the law in this area in R. v. Peters, 2014 BCSC 1009 at paras. 22-27: [22] All available sanctions, other than imprisonment, should be considered, particularly with respect to Aboriginal offenders - s.718.2(e). When an offender is identified as an Aboriginal it is necessary, when arriving at a fit and proper sentence, for the court toconsider (

a) the unique systemic or background factors that brought the offender before the court and (

b) the types of sentencing thatmay be appropriate because of the offender's Aboriginal heritage or connection: R. v. Gladue, (SCC), [1999] 1 S.C.R.688; R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207; R. v. Ipeelee 2012 SCC 13 .

[23] In Gladue, the court addressed the problem of over-incarceration of Aboriginal persons in Canada and the over-representation ofAboriginal Canadians in penal institutions. The court noted at para. 64: …It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intendedto attempt to redress this social problem to some degree. [24] At para. 80, the Supreme Court in Gladue, provided an outline of the approach which should be taken when sentencingAboriginal offenders.

The court said: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and hisor her community? What combination of systemic or background factors contributed to this particular offender coming before the courtsfor this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse in thecommunity, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denouncecrime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved throughhealing?

What sentencing options present themselves in these circumstances? (Emphasis original) [25] With respect to more violent and serious offences, the court in Gladue, at para. 79, said that, even taking into account theoffender’s Aboriginal background: …the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each otheror the same, … [26] This is particularly so when sentencing a dangerous offender, where the objective is the protection of the public. [27] Ipeelee, supra, again emphasized the need to consider the unique circumstances of Aboriginal persons when sentencing and totake judicial notice of historical factors affecting Aboriginals.

The court said at para. 60: ...To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools andhow that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substanceabuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarilyjustify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating thecase-specific information presented by counsel.

Counsel have a duty to bring that individualized information before the court in everycase, unless the offender expressly waives his right to have it considered... See also R. v. Kakekagamick (2006), (ON CA), 81 O.R. (3d) 664 (Ont.C.A.),R. v. Whiskeyjack, 2008 ONCA 800, [2008] O.J. No. 4755 (Ont.C.A.), R. v. Jacko, 2010 ONCA 452 , R. v. Napesis, 2010 BCCA 499 , R. v. Jack,2008 BCCA 437 , R. v. Armstrong, 2010 BCCA 451 ; R. v. Napesis, 2010 BCCA 499. [56] In Ipeelee, the Court critically analyzed the post-Gladue jurisprudence applying s. 718.2(

e) and identified several errors in itsapplication. The Court first made it clear that an offender does not need to establish any sort of causal link between background factorsand the offence before the court before he or she is entitled to have those matters considered by the sentencing judge. In this regard, theCourt emphasized at paras. 82-83 as follows: [82] This judgment displays an inadequate understanding of the devastating intergenerational effects of the collective experiences ofAboriginal peoples. It also imposes an evidentiary burden on offenders that was not intended by Gladue.

As the Ontario Court of Appealstates in R. v. Collins, 2011 ONCA 182 , 277 O.A.C. 88, at paras. 32-33: There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal linkbetween the systemic and background factors and commission of the offence. … As expressed in Gladue, Wells and Kakekagamick, s. 718.2(

e) requires the sentencing judge to “give attention to the unique backgroundand systemic factors which may have played a

part in bringing the particular offender before the courts”: Gladue at para. 69. This is amuch more modest requirement than the causal link suggested by the trial judge. (See also R. v. Jack, 2008 BCCA 437 , 261 B.C.A.C. 245.) [83] As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to everestablish a direct causal link between his circumstances and his offending. The interconnections are simply too complex.

The AboriginalJustice Inquiry of Manitoba describes the issue, at p. 86: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadiangovernment’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw asimple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or tobecome incarcerated. Furthermore, the operation of s. 718.2(

e) does not logically require such a connection. Systemic and background factors do not operate asan excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine anappropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless theunique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives canand should be actualized, they will not influence the ultimate sentence. [57] The Court in Ipeelee reiterated the importance of taking into account the Gladue considerations in all offences, regardless of

their seriousness. In particular, the Supreme Court criticized the post-Gladue jurisprudence for the irregular and uncertain application ofthe Gladue principles to sentencing decisions for serious or violent offences. The Court said the following at paras. 84-87: [84] The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of theGladue principles to sentencing decisions for serious or violent offences.

As Professor Roach has indicated, “appellate courts haveattended disproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance ofGladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders” (K. Roach, “One Step Forward, TwoSteps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim. L.Q. 470, at p. 472).

The passage in Gladue that has receivedthis unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practicalreality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking intoaccount their different concepts of sentencing” (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpretedthis generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), (ON CA), 164 C.C.C. (3d) 569 (Ont.

C.A.)). [85] Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimatelymakes it clear that sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the uniquesituation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence” (Gladue, at para.82).

Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that [t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter forsimilar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universalapplication. In each case, the sentencing judge must look to the circumstances of the aboriginal offender. This element of duty has not completely escaped the attention of Canadian appellate courts (see, e.g., R. v. Kakekagamick (2006), (ON CA), 214 O.A.C. 127; R. v.

Jensen (2005), (ON CA), 196 O.A.C. 119; R. v. Abraham, 2000ABCA 159 , 261 A.R. 192). [86] In addition to being contrary to this Court’s direction in Gladue, a sentencing judge’s failure to apply s. 718.2(

e) in the context ofserious offences raises several questions. First, what offences are to be considered “serious” for this purpose? As Ms. Pelletier points out:“Statutorily speaking, there is no such thing as a ‘serious’ offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered ‘serious’” (R. Pelletier, “The Nullification ofSection 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479).

Tryingto carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “therelative ease with which a sentencing judge could deem any number of offences to be ‘serious’” (Pelletier, at p. 479). It would alsodeprive s. 718.2(

e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises:Who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of thecircumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that aparticular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, becausethere is only one offender standing before the court. [87] The sentencing judge has a statutory duty, imposed by s. 718.2(

e) of the Criminal Code, to consider the unique circumstances ofAboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender,including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

CASE LAW [58] Counsel acknowledge, and the jurisprudence makes clear, that while case authorities are helpful in terms of general principlesand their application to a particular set of facts, they may also offer a sentencing range. The general range for manslaughter, absentunusual or special circumstances, is said by our Court of Appeal to be between four and 15 years' imprisonment: Engebretsen, 2016BCCA 182 at para. 13. Our Court of Appeal has also said in R. v.

Pop, 2013 BCCA 160, that in the case of young Aboriginal offenderswith no prior criminal records who committed manslaughter in aggravating circumstances, the range appears to be generally betweenthree and eight years' imprisonment with sentences of one and 10 years at the outer ends. [59] Of course, I am mindful that no two cases are alike and it may be appropriate in some circumstances to deviate from a range.The Supreme Court of Canada in Lacasse emphasized that point at para. 57 where it held: Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in anygiven case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”,let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise theirdiscretion in each case … [60] With these principles in mind, I will very briefly summarize some of the case authorities provided by counsel. I have fullyconsidered them all, but will highlight only a few. R. v. Engebretsen, 2015 BCSC 1752 [61] This offender was in his 50s. He was not Aboriginal. He had a dated criminal record such that the court treated Mr. Engebretsenas a first-time offender.

He was seen to be a "decent man who has never put a foot wrong before." He pleaded guilty to manslaughter inthe stabbing death of his 33-year-old stepson. The offender was extremely intoxicated and, after some small inconsequential verbal

dispute, he left the room, picked up a knife, and then returned to the room, stabbed the victim once in the heart while the victim satwatching television. The relationship the offender had with his stepson had not been a good one. Sometimes the stepson had been violenttoward Mr. Engebretsen and her son's presence was a source of conflict between Mr. Engebretsen and his wife. [62] Concluding there was nothing unusual or special about the circumstances that would cause it to deviate from the range, and thatthe offence was seen to be closer to the murder end of the scale than the accidental end of the scale, Mr.

Justice Baird sentenced Mr.Engebretsen to the low end of the range, imposing a four-year jail sentence, less credit for pretrial custody. On appeal, this sentence wasupheld. R. v. Pop, 2013 BCCA 160 [63] I have already referenced this case. Mr. Pop and his brother were charged with second degree murder in the stabbing death of ayoung man. All three men were drinking and an argument between the victim and Mr. Pop's brother ensued over some alcohol. Thevictim said he was going to get a gun and kill them. The victim left and returned with two knives. An argument ensued between Mr.Pop's brother and the victim.

The brother stabbed the victim a number of times. Mr. Pop then obtained the knife and stabbed the victimas well, to "finish him off," as he told an undercover police officer. [64] Mr. Pop was a 21-year-old Aboriginal young man. His childhood was neglected, abusive, and abandoned. He was in foster carefor a time. He was addicted to alcohol.

The sentencing judge imposed an effective sentence of five years and two months' imprisonmentplus a three-year probation order including a year of residential treatment. [65] On appeal, the Court of Appeal agreed the offence could not be characterized as a near accident and agreed that it was, rather,near the most serious end of the spectrum. However, the Court concluded that the sentence imposed by the sentencing judge wasdemonstrably unfit. It held that the sentencing judge did not give sufficient weight to the mitigating factors and, in particular, the effectof Mr.

Pop's Aboriginal background and other factors. The Court found that Mr. Pop's level of moral blameworthiness was significantlyreduced because of his circumstances, including his degree of intoxication, his background and circumstances, as well as the fact thevictim in that case appeared to be the aggressor and there were elements of self-defence and provocation. The Court reduced the sentencegiven to Mr. Pop to one at the lower end of the range and imposed an effective sentence of four years and two months' imprisonment. R. v. Feng, 2015 BCSC 1447 [66] In this case, 25-year-old Mr.

Feng stabbed his girlfriend's abusive brother numerous times. Coming to her aid when her brotherwas in the course of assaulting her, Mr. Feng came forward with a knife and stabbed the victim in the back four times. The men then hada brief struggle, during which Mr. Feng inflicted four more wounds to the front of the victim. [67] Mr. Feng had himself been the victim of severe physical, mental, and emotional abuse by his father over the years. He also borewitness to his father's abuse of his mother. Mr. Feng was not Aboriginal. Mr.

Feng sold drugs in his teens, but he turned his life around.At his sentencing hearing, 26 letters of support were filed from persons in every aspect of his life indicating a large and positive networkof community support. The offence was seen to be completely out of character. Finding that Mr. Feng's moral culpability was at thelower end of the spectrum and considering numerous mitigating factors, he received a sentence of four years and three months'imprisonment. [68] Defence highlights a few cases cited by Madam Justice Wedge in Feng. Counsel emphasized, among others, R. v.

Andrew, 2008BCCA 141 and summarized by Madam Judge Wedge at paras. 34-35 as follows: [34] In R. v. F. (G.C.), the Ontario Court of Appeal observed at paragraph 29 that the factors to be considered when determining theappropriate credit to be given in respect of the conditional sentence served by the offender include (

i) the conditions attached to theconditional sentence, (ii) whether the incarceration will result in hardship, (iii) the offender’s success in rehabilitation, and (iv) any delayin the hearing of the appeal. To that list I would add the inability of the offender to earn statutory remission and parole eligibility for theportion of the sentence served in the community. [35] In the present case, Mr. Andrew was subjected to house arrest during the conditional sentence. He performed some communitywork service. He appeared to be having success in his rehabilitation, which may be adversely affected by his incarceration. [69] To this

summary provided by Wedge J., I would add additional facts that come from my review of the actual case. Mr. Andrewwas 23 years of age at the time of the offence and 25 years of age at the time of his sentencing. He had a minor criminal record unrelatedto violence. He grew up in the Boston Bar First Nations Reserve and spent five years in foster care. He had been assessed as a teenager tohave fetal alcohol syndrome. There were a number of other mitigating factors taken into account by the sentencing judge.

In addition tohis remorse demonstrated from when he first gave a statement to police, he had been responsive to counselling as a youth, he wasattending addiction counselling at the time of sentencing, and was prepared to attend further counselling. He had quit the use of alcoholand marihuana after the incident. He had been steadily employed for two years prior to sentencing and had been compliant andcooperative while on judicial interim release. [70] The defence also emphasized from Madam Justice Wedge's decision two other authorities: R. v. McGoran, 2004 BCSC 1737and R. v. Bracken, 2012 BCSC 1084.

Wedge J. summarized the first of these at paras. 40-41: [40] In R. v. McGoran, 2004 BCSC 1737 , the accused pled guilty to manslaughter after killing the deceased during abotched robbery. The deceased had approached the accused and his companion and asked for their assistance in locating a prostitute.Offended at the request, they lured the deceased into a park with the intention of robbing him. The accused saw the deceased make asudden motion towards his companion and struck him on the head with a stick, killing him. The accused and his companion took moneyfrom the deceased and left his body in the park.

The accused had no criminal record and a difficult upbringing, including being in fostercare from the age of 11, where he exhibited aggressive behaviour with other children and persons in authority. He did not perform well in

youth custody and in recent years had been associating with the criminal element and doing drugs. [41] In sentencing Mr. McGoran to a sentence of two years less a day, an effective sentence of three years, two months, including credit for time served, Mr. Justice Joyce stated at para. 32: There are a number of factors to be taken into account in mitigation of sentence which I think tend to place this case at the lower rather than the higher end of the scale. Mr. McGoran cooperated with the police after having made a confession.

He accepted responsibilities for his actions and has pleaded guilty at an early stage of the proceeding. He is a very young man with no … criminal record. [ 71 ] Madam Justice Wedge then summarized the Bracken decision at para. 42 : [42] Finally, in R. v. Bracken … the accused pled guilty to manslaughter. Following a drug binge, the accused and the deceased, who lived together, argued about whether to continue to binge. The accused struck the deceased and choked her to death.

He then slit her throat, wrapped her body in a duvet, and deposited it in a park in North Vancouver, following which he lied to her family about her whereabouts. The accused had a dated and relatively minor criminal record. The Court found that Mr. Bracken's treatment of the victim's body seriously aggravated his moral culpability. He was sentenced to an effective sentence of four years' imprisonment. [ 72 ] To this

summary Bracken , I would add some particularly relevant points that distinguish that case quite dramatically from the case at bar. Having reviewed the actual decision, it is clear that the sentence of four years' imprisonment for Mr. Bracken was the product of lengthy negotiations that resulted in a joint submission between Crown and defence. The Court recognized in that case that the joint submission was a product of the Crown's realization that it would have had difficulty proving a key element of the offence.

The Court accepted that, in light of that fact, the accused's guilty plea was a significant mitigating factor. Indeed, Mr. Justice Fitch, as he then was, recognized the unique circumstances of the case when he wrote: … I wish to add that the sentence I am about to impose is responsive to a unique set of circumstances. I think it unlikely that the sentence imposed in this case will stand as a useful precedent in future cases. R. v. Huth , [2014] B.C.J. No. 579 [ 73 ] In this case, 24-year-old Mr. Huth inflicted a single blow from his fist during a late-night altercation in downtown Victoria.

The victim fell, hit his head, and died. Mr. Huth had no criminal record, was an accomplished athlete, had a history of meaningful employment, and was a person described by Mr. Justice Baird in Engebretsen as a "person of many admirable qualities." He was sentenced to two years less a day. R. v. Poucette , 1999 ABCA 305 [ 74 ] Mr. Poucette was a 19-year-old Aboriginal male at the time he stabbed and killed his cousin in the course of a drunken fight. Mr. Poucette had no criminal record, was immediately remorseful, and took significant steps toward his rehabilitation while on bail.

He entered a guilty plea to manslaughter. On appeal, the court concluded that a three-year jail sentence would have been a fit sentence. POSITION OF THE PARTIES [ 75 ] The Crown takes the position that a four-year prison term is at the very low end of the range and is an appropriate sentence in this case, emphasizing the importance of denunciation and deterrence. The Crown takes this position, that is, four years' imprisonment, having factored in the mitigating factors it has identified, including Mr.

Johnson's guilty plea, his background and circumstances, his young age, his alcohol consumption at the time of the offence, his compliance on bail, and positive steps he has taken while on bail such as abstinence from alcohol and drugs and counselling. [ 76 ] Balancing these mitigating factors with the aggravating factors such as the unprovoked nature of the assault, the use of a weapon, the steps Mr. Johnson took to obtain that weapon during the argument, and his flight from the scene, the Crown says, again, a fit and proper sentence is four years. The Crown emphasizes that while Dr. Stangeland finds Mr.

Johnson to be a low to low-to-moderate risk to reoffend violently, his risk will increase if he resumes drinking alcohol. The Crown highlights that Mr. Johnson has yet to attend a residential treatment facility or other similar alcohol treatment programming. [ 77 ] The defence takes the position that the circumstances of this case are unusual and justify a sentence of two years less a day followed by three years' probation. Rehabilitation ought to be the primary emphasis in this case. In making this submission, the defence emphasizes several mitigating factors, including Mr.

Johnson's guilty plea, his young age, the pro-social life he now leads, his background circumstances, his community support, his abstinence from alcohol and drugs over the last three years, his compliance on bail, and the insight that he demonstrates into his offending and his own conduct. In short, his counsel says that Mr. Johnson is no longer the callous and thoughtless person who killed Mr. Namox. His risk to reoffend is seen to be low and he is willing and able to continue on with appropriate treatment.

In all of the circumstances, the defence advocates for a sentence of two years less a day followed by probation. ANALYSIS [ 78 ] Of primary importance in this case are the sentencing objectives of denunciation, deterrence, and Mr. Johnson's rehabilitation. [ 79 ] Mr. Johnson and other like-minded individuals must understand that their use of mind-altering substances like alcohol carry risks of inducing behaviour that they might otherwise undertake and they will be held accountable for the harm they do to others while in

such a state. The court's message through its sentence must, therefore, be strong. Mr. Johnson must specifically understand that his priority in life is to remain abstinent from alcohol and other drugs. While his abstinence while on bail is a very good start, his alcoholism is so profound and his risk to harm others higher when intoxicated, that he must undertake intensive treatment and continue on the difficult and challenging path that he has only just started. [ 80 ] The sentence I impose must take into consideration that Mr. Johnson is a young man who will rejoin the community. He has skills.

He has a career path. He has a family. He has supports. The sentence I impose should help him find his way to contribute upon his release to his family and community. [ 81 ] The mitigating factors in this case are as follows: • Mr. Johnson was 21 years old at the time of the offence. He is to be considered a youthful offender, for which rehabilitation must play an important role; • Mr. Johnson was highly intoxicated at the time of the offence. Had he not been intoxicated, I accept this act would not have occurred; • Mr. Johnson has entered a guilty plea to manslaughter. His guilty plea reflects his remorse.

This remorse is also evident throughout the sentencing hearing. His guilty plea spared the witnesses and the family and friends of Mr. Namox the painful experience of a trial. I do recognize that a preliminary inquiry was held such that Mr. Johnson's guilty plea cannot be considered as having occurred at the very earliest of opportunities, but I do accept that his plea was not simply acquiescing to the inevitable. No trial was anticipated. He is truly remorseful for what has occurred. His statements in court reflect his genuine remorse; • Mr.

Johnson has taken steps while on bail to begin his road to rehabilitation and lead a pro-social life. He has remained abstinent from alcohol and drugs, maintained employment, taken some personal counselling, taken responsibility for his financial life, has formulated a plan for when he is released, and he has abided by his onerous bail conditions. He is willing to undergo any counselling or other rehabilitative programs that may be available to him in or out of custody; • Mr. Johnson has good family and community supports; • Mr. Johnson demonstrates insight into his responsibility and for his offending; • Dr.

Stangeland finds him to be a low to low-to-moderate risk to reoffend violently if he is abstinent from alcohol and drugs; • Mr. Johnson's background circumstances as an Aboriginal offender. The long-term impacts of the residential school system in Canada have been well documented. Many of the leaders, teachers, parents, and grandparents of today's First Nations communities are residential school survivors. There are well-recognized intergenerational effects, as well.

Many descendants of survivors share the same burdens as those who attended the schools including personal trauma, compromised family systems, loss of language, culture and teachings, loss of traditions. Residential schools laid the foundation for much of the violence and substance misuse suffered by Aboriginal Peoples today. It is well recognized that generations of children have grown up without a nurturing family life; self-abuse, high rates of alcoholism, substance misuse, and even suicide are recognized tragic results. Mr.

Johnson has clearly suffered these terrible effects. [ 82 ] The main aggravating circumstances are as follows: • This was an unprovoked assault on a person who was a stranger to Mr. Johnson; • Mr. Johnson used a weapon in committing the offence; • Mr. Johnson knew he had a knife with him and took steps to obtain it after the verbal argument had started; • Mr. Johnson left the scene; • The act perpetrated by Mr. Johnson was deliberate in that it was a single stab wound directed into the chest of Mr. Namox near the heart and did penetrate the heart; • Mr. Johnson is not a first-time offender.

While a lesser aggravating factor, I do consider his history of criminal convictions and performance on supervision as an adolescent as aggravating. Mr. Johnson has a history of violence while intoxicated, albeit approximately seven years prior to the offence at bar, and he has a history of substantial non-compliance of court orders. He availed himself of community supports in his adolescent years, but those efforts at rehabilitation clearly failed.

Although never convicted, he also admits to being involved in the past with selling drugs for a gang. [ 83 ] In all of the circumstances, I agree with the Crown that this offence was not a “near accident” or a “foolish misadventure”. This is not a case like Huth where the victim was intentionally punched and, unexpectedly and unpredictably, certain consequences tragically ensued. [ 84 ] Mr. Johnson did not know the victim. As a result of some trivial argument over the alcohol that remained, Mr.

Johnson took steps to go to his nearby backpack and retrieve a container containing his work knives and obtained a knife from within that container. He went back to the victim. While Mr. Namox was then seen to have a small knife in his hand, there is no suggestion that Mr. Johnson was acting in self-defence or that he was provoked or that Mr. Namox was the aggressor. Mr. Johnson stabbed Mr. Namox one time, left the knife, and fled the scene. Stabbing someone in the chest is a deliberate and violent act. The stabbing was the direct and immediate cause of Mr. Namox's death. Mr.

Johnson then fled the scene indicating some attempt to avoid responsibility. [ 85 ] In my view, all of these circumstances tend to weigh more toward the near murder end of the scale. However, Mr. Johnson's

degree of responsibility or level of moral blameworthiness is reduced by the brevity of the act, his alcohol consumption, and his background circumstances that I have outlined previously in these reasons. I recognize, however, that this was not the first time Mr. Johnson engaged in violence while under the influence of alcohol, albeit the earlier event occurred some years earlier. [ 86 ] Although each case is unique, this case bears some similarities to Pop . Mr.

Pop was also a youthful Aboriginal offender who pled guilty to manslaughter, expressed remorse, was willing to accept treatment, and was the victim of multi-generational abuse. A fit sentence was determined by our Court of Appeal to be a sentence at the lower end of the range, four years and two months' imprisonment. Now, clearly, Mr. Pop's case is not identical to Mr. Johnson's case. Mr. Pop's case was more aggravating in some respects, but it was more mitigating in others. While Mr. Pop inflicted multiple stab wounds to his victim and Mr. Pop committed offences after his release on bail, the victim in Mr.

Pop's case was the aggressor, there were elements of self-defence and provocation, and Mr. Pop had no prior criminal record prior to the offence. [ 87 ] I am going to ask Mr. Johnson to now, please, stand. [ 88 ] Mr. Johnson, on the basis of all of the authorities and taking into account the various principles and factors I have outlined, including Mr. Johnson's lessened moral culpability and all of the mitigating factors I have outlined, I conclude that a sentence of four years' imprisonment is a just, fit, and proportionate sentence in this case. While serving that sentence, I trust that Mr.

Johnson will be true to his word and avail himself of the very good substance abuse programming and psychiatric services available through the Correctional Service of Canada. [ 89 ] From that sentence, Mr. Johnson, I am going to deduct the amount of time that you have spent in pre-trial custody. You have spent approximately five to six weeks in pre-trial custody. Giving you credit on a one-and-a-half-to-one basis, I am crediting you with two months' imprisonment. Therefore, your net sentence, Mr. Johnson, will be three years and 10 months' imprisonment. [ 90 ] You can have a seat for a moment, Mr. Johnson.

I want to have a discussion with the lawyers about some of the ancillary orders. So, please, just have a seat. [SUBMISSIONS RE: ANCILLARY ORDERS] [ 91 ] Mr. Johnson, pursuant to s. 487.051 of the Code , I make an order that you provide a sample of bodily substance suitable for DNA analysis. There is also a victim fine surcharge under s. 737 of the Code . You are required to pay that, as well. [ 92 ] So we will stand down briefly with respect to that one issue and reconvene when counsel are ready. [ 93 ] THE CLERK: Order in court.

This court is stood down. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 94 ] MS. PUREWAL: [Recording equipment turned on] … but Crown is still seeking a lifetime prohibition. [ 95 ] THE COURT: All right, and you do not oppose that, do you, or do you? [ 96 ] MR. McCARTHY: No position, My Lady, as I said, should my client wish to pursue his right to engage in an Aboriginal hunt, he can always make application under s. 113. [ 97 ] THE COURT: All right. So, in those circumstances, with no position taken by the defence, Mr.

Johnson, I do make an order prohibiting you from possessing firearms and ammunition under s. 109 of the Code for life. [ 98 ] MR. McCARTHY: And, My Lady, with respect to the victim of crime surcharge, given that he will have been in custody for some period of a little less than four years before his release, I would ask for time to pay. [ 99 ] THE COURT: Of course. [ 100 ] MR. McCARTHY: Six months, I would -- think would suffice. [ 101 ] THE COURT: Six months' time to pay. [ 102 ] All right. This concludes this sentencing hearing unless there is anything further from counsel? [ 103 ] MS.

PUREWAL My Lady, I was wondering if you gave the forfeiture order earlier -- [ 104 ] THE COURT: Oh, right -- [ 105 ] MS. PUREWAL: -- for the items seized [ 106 ] THE COURT: -- the forfeiture order -- [ 107 ] MS. PUREWAL: Thank you. [ 108 ] THE COURT: -- and it was -- what were you seeking? [ 109 ] MS. PUREWAL: For the knife and just the items seized from the residence report. It is specifically the weapon, the knife. [ 110 ] THE COURT: Just the knife?

[ 111 ] MS. PUREWAL: Yes. [ 112 ] THE COURT: All right. Well, the knife that was seized in the course of the police investigation currently held -- is it at the RCMP detachment? [ 113 ] MS. PUREWAL: It is in Smithers here, yes. [ 114 ] THE COURT: All right -- is forfeited to the Crown for destruction. [ 115 ] I recognize the thoughtful and careful attention that went into preparation for the sentencing hearing and I do wish to thank counsel for their excellent submissions. “S.A. Donegan J.” DONEGAN J.