R. v. Suel, 2023 BCSC 2288

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Suel, 2023 BCSC 2288 Date: 20231214 Docket: 69807-2 Registry: Chilliwack Rex v. Daniel Mark Suel Before: The Honourable Justice Walkem Oral Reasons for Sentence Counsel for the Crown appearing by videoconference: M.L. Wray Counsel for the Accused appearing by videoconference: J.D.A. Watt Place and Date of Trial/Hearing: Abbotsford, B.C. July 5, 2023 Place and Date of Judgment: Chilliwack, B.C.

December 14, 2023 [ 1 ] THE COURT: On December 1st, 2019, the accused, Daniel Suel, and co-accused, Marco Verhage, assaulted the victim, Dennis White, who was 76 years old at the time. Both Mr. Suel and Mr. Verhage were experiencing serious substance abuse at the time of the assault. Mr. Suel was homeless. Mr. Verhage pled guilty early on and was sentenced to three years. Mr. Suel pled guilty to aggravated assault, contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C-46 , and break and enter with intent to commit an indictable offence, contrary to s. 348(1) (

a) of the Criminal Code . [ 2 ] A Gladue report was prepared in advance of sentencing which provided information on Mr. Suel's Indigenous background and suggested community resources to assist in his rehabilitation and healing. The Crown recommended a sentence involving jail time for four years. The defence suggested a conditional sentence order, or CSO, was appropriate. [ 3 ] Following sentencing submissions, I requested further submissions from the parties of the proposed terms of the CSO.

Counsel subsequently advised that no proposed conditions were going to be presented and were in agreement that sentencing should proceed on the basis of the submissions already made. Circumstances of the Offence [ 4 ] On December 1, 2019, Mr. Verhage offered to drive a group of people from a homeless encampment in Hope to Chilliwack. After dropping others off around town, only Mr. Verhage and Mr. Suel remained in the vehicle. They then went to the Tim Hortons at or near 43971 Industrial Way in Chilliwack, B.C., where they parked in the lot and “ate”, or orally ingested, raw methamphetamine.

This was not the usual way that they used the drug, and the result was different and more intense. They then exited the vehicle and walked through the parking lot, at which point they happened upon an RV parked behind the Tim Hortons and owned by the victim, Mr. White. [ 5 ] Mr. White, as I have said, was 76 years old at the time. He lived alone in the RV. Mr. White heard Mr. Suel and Mr. Verhage, and approached the two men. Mr. Verhage then punched Mr. White in the face. Mr. White fell to the ground, and Mr. Verhage and Mr. Suel picked him up and put him inside the RV. These actions were all unplanned. [ 6 ] Mr.

Suel then told Mr. Verhage to drive the RV. Mr. Suel proceeded to physically assault Mr. White on the bed in the back of the RV while Mr. Verhage drove the RV up Dyke Crest Road. The RV became stuck and Mr. Suel and Mr. Verhage left the vehicle, taking Mr. White's wallet. They then returned to Hope. [ 7 ] Mr. Verhage, accompanied by Mr. Suel, used Mr. White's credit card to purchase gas. Mr. Verhage was identified through surveillance footage and arrested. Mr. Verhage identified Mr. Suel. Impact of the Offence on Mr. White [ 8 ] After the men left, Mr.

White exited the RV and attempted to get help from people passing on the highway. Eventually a passerby stopped and 9-1-1 was called. Mr. White was taken to Chilliwack Hospital. The assault he sustained, resulted in the following injuries: a nasal fracture, two rib fractures, a spinal fracture, numerous dental injuries, significant facial trauma, secondary kidney damage, soft tissue injuries, and a significant concussion. Mr. White remained in the hospital for approximately a month.

[ 9 ] In his statement to the RCMP while he was in the hospital Mr. White stated he was afraid during the attack that Mr. Suel was going to kill him. The assault and resulting events had a significant impact on the final months of Mr. White's life. His RV was taken into evidence as part of the investigation and was not returned to him after evidence was collected from it. This resulted in him himself becoming homeless and having to move into a shelter after being released from the hospital.

He sought counselling to deal with the trauma he experienced related to the attack, and remained in Chilliwack to ensure that he would be there for the trial. Mr. White died of a heart attack within a year, though unrelated to the injuries suffered in the assault. Background of Mr. Suel [ 10 ] Mr. Suel was born in 1983 in Prince George. He is an unregistered member of the McLeod Lake Indian Band and his maternal grandmother has roots in the La Ronge area of Saskatchewan. The reason that Mr.

Suel is unregistered with the McLeod Lake Indian Band is a result of several generations of state interventions in the life of his family through both the Indian Residential School, or IRS, system, and then successive generations of child removal through the child welfare system.

The impact of these systems on their members was described by a band representative of the McLeod Lake Indian Band as including the ongoing impacts of IRS in the Sixties Scoop where "successive generations of survivors brought their trauma and pain back home and, as a result, we have struggled with problems with poverty, alcohol, and drug addiction, and physical, mental, and sexual abuse. It is why our people leave. They go to the cities and just disappear." [ 11 ] The circumstances of Mr.

Suel's family and personal background are marked with what we now understand to be the effects of colonialism and intergenerational trauma that has impacted Indigenous peoples and communities across Canada. For Mr. Suel, this has presented as cultural and familial dislocation, intergenerational substance misuse, and high rates of family violence. [ 12 ] The Gladue report indicates Mr. Suel's grandmother was an IRS survivor and his mother was a survivor of the Sixties Scoop, having been apprehended as an infant. His mother was raised by a non-Indigenous family and disconnected from her own Indigenous identity.

She stated the following to the Gladue report writer: “I basically grew up white and didn't have any involvement with my Indigenous culture, but it was always something I wanted.” [ 13 ] Mr. Suel's mother left her adoptive home as a young teenager and began living on the streets in Prince George and abusing substances. She met Mr. Suel's father during this time, who was also homeless and using substances. Together they had three children, including Mr. Suel. His father also had another child. Until the age of 10, Mr. Suel lived in Prince George, at which point his family moved to Abbotsford.

Parental substance abuse, and misuse, family violence, numerous forms of other abuses, poverty, and neglect were all present in Mr. Suel's childhood. His parents also lived a criminal lifestyle to support their addictions. [ 14 ] Mr. Suel reported having very little supervision and guidance from his parents, which resulted in he and his siblings being placed into the child welfare system on more than one occasion, eventually on a permanent basis when he was 13.

Though he and his siblings were initially placed together, they were ultimately separated and did not live together again prior to aging out of care. [ 15 ] In 2007, Mr. Suel's father committed suicide. [ 16 ] Mr. Suel's own use of drugs and alcohol began when he was around 12 years old as a coping mechanism, eventually developing into an addiction. [ 17 ] In 2018, he was injured in a car accident where he suffered significant injuries, including various broken bones, a fractured skull, and a brain injury. He was hospitalized for several weeks and prescribed strong pain medications when he was released.

The prescription of these pain medications after the motor vehicle accident propelled Mr. Suel into further addiction. Over his lifetime he has attended approximately 10 different treatment programs, both as a youth and as an adult. [ 18 ] Mr. Suel now has three children of his own. He has no contact with his eldest daughter, born in 2017, and did not have regular contact with his two younger children, a daughter born in 2015 and son born in 2018, while he was actively misusing substances. All of Mr.

Suel's children are now themselves in the child welfare system, an unfortunate continuation of a tragic history of child removal, familial dislocation, and cultural dislocation. Current Circumstances of Mr. Suel [ 19 ] Mr. Suel was arrested and detained on December 15, 2019, and remained in custody until May 5th, 2020, following a s. 525 application. In total, he served 140 days, or 200 days with credit, for a total of approximately seven months.

He has been subject to strict conditions as part of his release for the past three years. [ 20 ] On the evidence before me in sentencing submissions, in the roughly 4.5 years since his initial detention, it appears that Mr. Suel had managed to turn his life around in many ways.

He undertook further substance abuse treatment, which was outlined in the Gladue report as follows: For a period of five months in Surrey Pretrial Centre’s Right Living Community Unit where offenders commit to abide by community rules, remain drug free, and participate in the daily routine of community meetings, activities, work and educational functions… he was released… to the Phoenix Treatment Centre located in Surrey, BC.

He completed the 90 days program and transitioned to the second stage, remaining at the facility a further five months to reinforce the treatment gains and stabilize his life, before securing his own residence. [ 21 ] Mr. Suel reports that he has been clean and sober since leaving Phoenix and, mindful of his triggers, has disassociated from his previous peers and consciously maintained a small social circle. Mr. Suel also re-established contact with his two younger children and expressed a desire to be able to parent them again and to remove them from the child welfare system.

In submissions, I was advised that he was in a stable relationship as well. Position of the Crown

[22] The Crown proposes a sentence of four years less time served. They argue this is at the lower end of the range, which theyidentified as four to six years for similar crimes. They submit that the sentencing principles of denunciation and deterrence should takeprecedence in considering an appropriate sentence. With time served, the time Mr. Suel would serve in custody under the Crown'sproposal, at the time submissions were made, was approximately three years and five months. [23] The Crown acknowledges that Mr. Suel's co-accused, Mr. Verhage, received a lesser sentence than what is proposed here.

TheCrown says that the sentence Mr. Verhage received reflected his early guilty plea, that he had developed a drug addiction following amotor vehicle accident, and the fact that, although he was the first to strike Mr. White, it was Mr. Suel who carried out most of theassault while Mr. Verhage drove. Position of the Defence [24] The defence suggests a position of time served, or a seven-month incarceration for the offence of break and enter with intent. Onthe charge of aggravated assault, the defence argues an appropriate sentence is two years less a day suspended sentence and three yearsprobation.

The defence proposes a CSO to be served in the community with extensive conditions that would include restrictions,substance abuse treatment, counselling, and community service. The defence argues Mr. Suel no longer poses the danger that he didbecause he is no longer actively using drugs, that he has rehabilitated himself, and that supporting his recovery offers the best chance ofa solution that would protect society.

Legal Principles– Purposes and Principles of Sentencing [25] Sentencing principles are codified in s. 718 of the Criminal Code with the fundamental purpose being to protect society and tocontribute to the maintenance of a just, peaceful, and safe society. The objectives of denunciation and deterrence, as well as those ofrehabilitation, reparations, and promoting a sense of responsibility in offenders, are outlined in s. 718(

a) through (f).

Section 718.1obligates the court to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. [26] The Supreme Court of Canada has stated that, while proportionality is an important factor in sentencing, it will be unique to thespecific circumstances of each particular case and offender. Imposing a proportionate sentence is a highly individualized exercise tailoredto the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime, per R. v. Nur, 2015 SCC 15 atparagraph 43. [27]

Section 718.2 sets out principles for the court to take into consideration when imposing a just sentence. Included within these arethat the sentence should be similar to those imposed in similar cases with similar offenders. [28] The sentencing principles outlined in s. 718.2(

e) were first acknowledged in R. v. Gladue, (SCC), [1999] 1 SCR688, by the Supreme Court of Canada, and later emphasized in R. v. Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433.

In Ipeelee, theSupreme Court of Canada said at paras. 60 and 87, that: [60] When sentencing an Aboriginal offender, courts must take judicial notice of such matters as the history of colonialism,displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higherunemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. ... [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 … run[s] afoul of this statutoryobligation. … [Such a failure] would also result in a sentence that [was] not fit and [was] not consistent with the fundamental principle ofproportionality… [29] The sentencing provisions in s. 718.2(

e) were intended to acknowledge and address the drastic overrepresentation of Indigenousoffenders in the criminal justice system. In cases such as Gladue, Ipeelee, and R. v.

Proulx, 2000 SCC 5, the Supreme Court of Canadahas recognized this overrepresentation as driven by features such as cultural alienation, poverty, the impact of the IRS and child welfaresystems, most of which are unique to the experiences of Indigenous peoples in Canada. [30] In Ipeelee, the Supreme Court of Canada reflected, at paragraphs 36 to 37, that: [36] … The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and thedegree of responsibility of the offender ... It also has a constitutional dimension, in that s. 12 of the ...

Charter ... forbids the imposition ofa grossly disproportionate sentence that would outrage society’s standards of decency. In a similar vein, proportionality in sentencingcould aptly be described as a principle of fundamental justice under s. 7 of the Charter. [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality ... First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective ofdenunciation. 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 ofthe offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other.

[ 31 ] The Supreme Court of Canada went on to discuss the concept of moral blameworthiness and directed trial courts to consider that the weight of this history may deny opportunities, and create other factors, which, in essence, push Indigenous offenders toward certain outcomes at paragraphs 73 to 75: [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as “the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct” ... Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability ...

Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. ... [74] The second set of circumstances — the types of sanctions which may be appropriate — bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself.

As Cory and Iacobucci JJ. point out, at para. 73 of Gladue : “What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.” ... given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. [75]

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular [circumstance]. [ 32 ] The case of R v. Kehoe, 2023 BCCA 2 involved an Indigenous offender charged with aggravated assault, which had resulted in the victim suffering life-threatening injuries.

At trial, he was sentenced to five years less time served. On appeal, Justice Marchand, now Chief Justice Marchand, reduced the sentence to four years less time served. The main issue on appeal was that the judge did not give relevant weight to the Gladue factors. In Kehoe , the court summarized the sentencing principles under s. 718.1 as follows at paragraph 54 through 57: [54] First, as the Truth and Reconciliation Commission noted at pp. 1–3 of its

summary report, “Honouring the Truth, Reconciling for the Future,” Canada developed and implemented “a coherent policy to eliminate Aboriginal people as distinct peoples and to assimilate them into the Canadian mainstream against their will.” Canada “pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control over their land and resources.” Residential schooling was one of many tools Canada used to achieve its assimilationist objectives. [55] As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnected from their ancestral communities, cultures, and associated positive social structures.

This disconnection has contributed to the social and economic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system. [56] Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policies that Gladue and Ipeelee seek to address. Accordingly, the Crown’s reasoning that Gladue principles should play a very limited role in this case because Mr. Kehoe was disconnected from his Indigenous culture, community and supports subverts the remedial purpose of s. 718.2(

e) of the Code and penalizes Mr. Kehoe for the success of Canada’s destructive policies. [57] Second, when determining whether and how Gladue principles applied to Mr. Kehoe, the issue was never whether he was disconnected from his Métis community, culture and supports.

Rather, the issues were: (1) the role Canada’s colonial history and post- colonial assimilationist policies played in causing that disconnection; and (2) the role that disconnection played in his coming before the court. [ 33 ] Consideration of how Gladue factors impact moral blameworthiness of an offender is necessary to ensure the sentence contributes to the objective of achieving a just, peaceful, and safe society. [ 34 ] The Crown suggests that home invasions are considered to be particularly serious offences and the seriousness is increased where there is a threat of, or actual, violence.

The Crown cited a number of cases which it submitted reflected an appropriate range of sentence. This included R. v. Armstrong , 2023 BCCA 50 , which dealt with an accused who had several charges related to violence, assaults of his ex-partner, including one which he broke into her home and assaulted her. The attacks were found to be premeditated. The accused was sentenced to seven years, reflecting a sentence on the high range.

Given the focus of intimate partner violence present in Armstrong , and the fact that the attacks were premeditated, it does not particularly fit the facts of this case. [ 35 ] Crown also cited R. v. Dang , 2002 BCCA 304 , which dealt with an accused who broke into a home and held the residents at gunpoint. He was convicted of unlawful confinement, assault with a weapon, breaking and entering a dwelling house, and committing unlawful confinement having face masked with intent to commit an indictable offence.

At trial, he was sentenced to one year less a day, to be served in prison, and one year to be served under a CSO. This was overruled on appeal and he was sentenced to 5.5 years with credit for pretrial custody. [ 36 ] Dang was cited in R. v. Chudley , 2016 BCCA 90 , a case which involved another violent home invasion. The Court of Appeal distinguished Dang in that Chudley involved violence where people were actually hurt, whereas Dang only included a threat of violence.

The accused's lack of remorse and violent record were aggravating factors in Chudley which supported upholding a 10-year sentence.Neither of the offenders in those cases were Indigenous. [37] In R. v. Moyan, 2017 BCCA 227, the British Columbia Court of Appeal dealt with an Indigenous offender who, with others,stabbed another drug dealer. They then forcibly gave him heroin, after which they drove him to a store and told him to steal a TV to settlea drug debt. When the victim was unable to do so, they dropped him off in front of a hospital. At trial, the accused was sentenced to sixyears and nine months.

On appeal, he sought to have a Gladue report introduced for consideration with regard to the sentence. The Courtof Appeal found the sentencing judge did not have the appropriate information to determine the full extent of Gladue factors in thesentence and, upon consideration of the Gladue report and factors before the court, found there was reduced moral culpability andreduced the sentence to five years less time served. [38] Moyan was cited in R. v. Taylor, 2021 BCCA 283, where the accused argued the sentencing judge did not give proper weight orconsideration to her Indigenous background.

The Court of Appeal dismissed that ground of appeal, finding the sentencing judge had noevidentiary basis on which to find Gladue factors had impacted the accused's own life experiences. The sentence of nine months in jailand 12 months in probation was upheld. I do note that the findings in Taylor regarding the impact of Gladue factors are inconsistent withthe reasons of the Court of Appeal in Kehoe. [39] In R. v. Parinas, [1993] B.C.J. No. 2645, (BC CA), the accused was sentenced to three years imprisonment.Parinas was most recently cited in R v. Ridgeway, 2017 BCSC 1472.

The following comments by Justice Ker in Ridgeway are helpful tothis analysis, at paragraph 56: [56] The Crown provided the following cases. R. v. Parinas ... where the Court of Appeal raised the sentence imposed after trial fromthree years to four and a half years' imprisonment. The offender was 20 years old with a prior criminal record with offences of violence.Mr. Parinas and at least two others gained entry to a home by means of a trick. Mr. Parinas brandished a sawed-off shotgun and anotherperpetrator had a knife.

The occupants of the home, two adult women and two children, were terrorized as they were bound, gagged, andthreatened to be killed. In raising the sentence imposed, the Court of Appeal noted that the appropriate range for the robbery offenceswould be five to eight years. [40] I pause to note that Parinas is a decision from 1993 and the sentencing authorities since that time have somewhat realigned therange of sentence for home-invasion style robberies to be between six and 13 years imprisonment. That is from that decision. [41] In R. v. Robert, [1996] B.C.J.

No. 1365, (BC CA), the Court of Appeal reduced a sentence from nine to sixyears for an accused who had broken into a home with others while intoxicated, with the intention to rob it. The homeowner was a 95-year-old woman who awoke and was assaulted by one of the others. In reducing the sentence, the Court of Appeal considered theIndigenous background, alcoholism, and efforts at recovery of the accused. Of note is that that case pre-dated Gladue. [42] In R. v. Whicher, 2002 BCCA 336, the Court of Appeal considered a home invasion where an elderly couple were robbed atknifepoint in their home.

One of the victims was injured in the robbery by another accused. At the time of the offence both accused were24 years old with substance abuse issues and had other significant mitigating factors in their backgrounds. The Court of Appeal refusedthe appeal on sentence, and stated seven to 10 years was the appropriate range for home-invasion type offences. [43] The cases provided by the Crown provide a guide as to how sentencing judges in our Court of Appeal have approached similarcases in the past. More recently, the Court of Appeal, in R v.

Smith, 2020 BCCA 87, stated the sentencing range in cases similar to thepresent is five to 15 years. On the aggravated assault charge, the Court of Appeal referred to a range of 16 months to six years that wasarticulated in R v. Randhawa, 2019 BCCA 429. That being said, the Supreme Court of Canada has made it clear that sentencing rangesare intended to serve as a guide for the application of relevant purposes and principles of sentencing; however, they are not intended tobe hard and fast rules. That is R v.

Friesen, 2020 SCC 9 at paragraph 36 to 37. [44] A sentencing judge has discretion to order a sentence which may fall outside of the proposed range so long as it is in alignmentwith the purposes and principles of sentencing and is not demonstrably unfit, per R v. Nasogaluak, 2010 SCC 6, in R v. Lacasse, 2015SCC 64 at paragraphs 57 and 61, Nasogaluak at paragraph 44. This was recently discussed by the Court of Appeal in Armstrong atparagraph 31, where it was noted that: ... there is no requirement for there to be exceptional circumstances in order to justify a sentence outside of an articulated range.

Theissue is whether the sentence is proportionate to the offence committed and the moral blameworthiness of the offender ... [45]

Section 718.2(

a) of the Criminal Code requires the court to take into consideration any relevant aggravating or mitigating factors,including: (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation ... Analysis [46] The impact of the attack on Mr. White's life is an aggravating factor in this case. At the time of the assault he was an elder, 76years old, and in poor health. His vulnerability was exacerbated by the fact that he lived in the RV, where the attack occurred.

Followingthe assault, the trajectory of Mr. White's final months changed. He suffered serious physical injuries in the attack, his mental wellbeingwas impacted as a result of being the victim of a violent crime, he sought counselling to deal with the impact of the attack. And althoughthe assault did not cause Mr. White's death, it certainly coloured the last months of his life. [47] The Crown argues I should consider Mr. White's living situation following his release from hospital to be an aggravating factor.Because his RV was held as evidence, he was forced to live in a shelter for his final days.

While I acknowledge that this was a significant

impact upon Mr. White, there was nothing in evidence before me as to the reason his RV continued to be held by the RCMP after evidence was collected, or whether there was any effort to have it returned to Mr. White. I therefore do not attribute this aggravating factor to Mr. Suel. However, I do find the fact that Mr. White was violently attacked in his home, the RV, to be an aggravating factor. [ 48 ] Mr. Suel's criminal record is also an aggravating factor. His record shows a number of offences stretching back several years.

His involvement with the criminal justice system began as a youth and has carried on since that time. His record shows convictions for theft and property-related offences, driving offences, possession of purposes of trafficking, numerous breaches of community supervision, court, or probation orders, and some charges which the Crown characterized as light violence.

It is fair to say that this record reflects the life of someone who is actively entrenched in, and struggling with, severe substance misuse, poverty, and trauma. [ 49 ] As outlined above, the direction from the Supreme Court of Canada is that sentencing courts need to consider the impact of an Indigenous offender's background on their moral blameworthiness and, in light of all of the circumstances, to consider what sanctions, including alternatives to custodial sentence, may be appropriate. [ 50 ] The Gladue factors in Mr.

Suel's life include: • multi-generational familial instability, violence, breakdown, and fragmentation. [Mr.

Suel]'s formative environment was defined by poverty, neglect, parental alcoholism and drug abuse, violence, and criminality; • the absence of any positive adult role models/mentors; • loss of his father through chronic substance misuse and premature death/suicide; • childhood apprehension by the Ministry and involvement in the foster care system; • alienation from his [Indigenous] background and consequent loss of identity; • early introduction to and a subsequent chronic personal history of substance use; as early as age 12, [Mr.

Suel] began consuming alcohol and smoking marijuana as means to “ self-medicate ” and “ numb ” the emotional manifestations of his unaddressed childhood traumas, social alienation, and to “ fit in ” with equally marginalized youth. This rapidly escalated, and by age 13 [his] substance misuse had expanded to incorporate smoking crack cocaine, crystal methamphetamine, and heroin. [Mr.

Suel]'s polysubstance addictions followed him into his adulthood, and until more recently remained a relatively static feature throughout much of his adult life, with consequent impacts on his relationships, interpersonal communication, vocation, and continuing involvement in the criminal justice system and corrections; • low educational achievement, vocational marginalization, poverty, and criminality; and • intergenerational effects of the Canadian government’s imposition of the Indian Residential School system, Sixties Scoop, and other discriminatory policies with consequent loss of generational family stability, parenting capacity, culture, values, language, ancestral knowledge, traditional family and community support mechanisms, and connection to the larger Tse’khene Nation community.

Those are quotes from the Gladue report. [ 51 ] Mr. Suel's guilty plea prior to the commencement of a trial in this matter is also a mitigating factor. The pretrial confession avoided what could have been a three to four-week trial, which would have involved numerous Charter applications about the admissibility of evidence. The Crown argues it had a strong case, though acknowledges that the plea saved several weeks of trial time. The Crown also points out that Mr. Verhage pled guilty earlier than Mr.

Suel. [ 52 ] The Crown emphasizes principles of deterrence and denunciation, particularly in light of the significant and tragic circumstances of the offence on the victim and says these principles must be given appropriate weight alongside consideration of the Gladue principles. [ 53 ] The defence emphasizes that, despite the sentencing principles outlined in s. 718.2 (

a) of the Criminal Code , and direction of the Supreme Court of Canada in cases such as Gladue and Ipeelee , intended to address the drastic overrepresentation of Indigenous offenders in the criminal justice system, that the numbers of Indigenous offenders serving custodial sentences has continued to grow.

There is a requirement on the part of sentencing judges to actively engage with and incorporate, the Supreme Court of Canada's direction when sentencing Indigenous offenders. [ 54 ] This is a case that requires the court to grapple with how to give effect to the purposes and principles of sentencing while also meaningfully considering and giving effect to the Supreme Court's direction about how to incorporate the Gladue principles in the face of a violent crime against a very vulnerable elderly person.

In sentencing in similar situations, the court has had to grapple with looking at the history of intergenerational trauma, which leads Indigenous peoples to be incarcerated at an unprecedented rate. Further, in considering that history, take into account the need to protect society, and the need to ask how to disrupt the pattern and break the cycle of repeat offending. The court is required to consider how to ensure public safety, with an emphasis on the principles of denunciation and deterrence, while also considering other sentencing principles.

This includes taking into account the compelling need to address the colonial history and how it weighs into the moral blameworthiness of an accused. The principle of proportionality requires finding a way to disrupt the numbers. [ 55 ] Mr. Verhage pled guilty earlier in the process. He did not have a criminal record, unlike Mr. Suel. However, he was in the midst of a drug addiction that had arisen for him following an accident. Other mitigating factors for Mr. Verhage included that he did not strike Mr. White as many times or cause the same level of injury that Mr. Suel did. Mr.

Verhage received a three-year sentence. The Crown says that the mitigating factors present for Mr. Verhage justify the lesser sentence than they are seeking for Mr. Suel, which is four years. [ 56 ] Ultimately, as outlined below, I reject the sentencing range for the sentence proposed by the Crown because it does not

adequately reflect the Gladue factors, and in particular how Mr. Suel's family history and social context impact his moralblameworthiness, as summarized in the Gladue report: Mr. Suel has struggled with the emotional manifestations of his childhood traumas, substance misuse, broken relationships, criminality,and consequent absence from the life of his children. [Mr.

Suel] remains an intergenerational survivor of the imposition of the IRS and other discriminatory policies of Canadian government,and like many in his immediate and extended family, a dysfunctional product of social and familial disintegration. [57] Another factor I find to be a relevant consideration is the degree to which Mr. Suel, at the time sentencing submissions weremade, had managed to turn his life around following his release from custody in May of 2020. Mr.

Suel's criminal history, which I haveconsidered an aggravating factor, shows a relatively unbroken chain of criminal offending from the time he was a young adult. This hasincluded numerous breaches of court orders over the years. It was noteworthy at the time of sentencing submissions that this appeared tobe the first time Mr.

Suel had been able to maintain a period of non-offending and sobriety. [58] When someone's history of offending is driven by addictions and substance misuse, where a person is able to begin a process ofcourse-correcting in their life, to begin a process of addressing those addictions, maintaining that course-correction has a better chance ofensuring public safety and meeting the sentencing goal of deterrence, in some circumstances, than a sentence involving imprisonment. [59] In R v.

Ellis, 2022 BCCA 278, the sentencing judge departed from the suggested range for trafficking of fentanyl, imposed a 12-month suspended sentence with minimal conditions. The Court of Appeal, on consideration of that sentence, found the judge had madeseveral errors in coming to this conclusion. However, noting the accused was doing well and acknowledging that now imposing acustodial sentence would substantially interfere with her rehabilitation, the Court of Appeal chose not to impose a longer sentence andinstead substituted a 12-month suspended sentence with a three-year probation. [60] In R v.

De Silva, 2018 BCSC 1496, the accused was convicted on eight counts of robbery and sentenced to two yearsincarceration followed by three years probation. In imposing a sentence below the typical range, Justice Macintosh stated, at paragraph37: In my view, Mr. De Silva's record of rehabilitation in the past two and a half years has been exceptional.

His conduct warrants theCourt's support, in accordance with what our Court of Appeal has said about rehabilitation in Rosov, Preston, and Sellars ... [61] In R. v Louie, 2019 BCSC 368, Justice Marchand, as he then was, departed from typical sentencing range for convictions ofrobbery and robbery with an imitation firearm, and imposed a sentence of 24 months and 47 days with credit for 47 days as time served.In coming to this decision, he noted the significant Gladue factors present in the life of the accused, as well as his effort at rehabilitationwhile in pretrial, stating at paragraph 33: Given the success of his efforts to address his substance abuse issues, the level of support he has from sober family members, and theimportant role he has within his family, more harm than good would result from a lengthier term of imprisonment. [62] In R. v Kawerninski, 2023 BCSC 377, the accused participated in a violent attack in which the victim was grievously woundedand suffered permanent impairments as a result of the assault.

The accused was convicted of aggravated assault and a sentence of twoyears less a day was imposed in addition to credit for time served in pretrial custody. The court ordered the remainder of the sentence tobe served under a CSO.

In imposing the sentence, the court considered the principles and purposes of sentencing, typical sentencingranges for similar offences, and considerations in sentencing Indigenous offenders, stating at paragraph 33: After much consideration, I have ... concluded that a conditional sentence order with appropriately punitive, deterrent, [and] corrective ...rehabilitative conditions will not endanger the safety of the community, and will otherwise be consistent with the fundamental purposeand principles of sentencing [as] set out in ss. 718-718.2 of the ...

Code, including the requirement of restraint, especially as applied to theAboriginal offender before me, set out in s. 718.2(e). Such a disposition also takes account of the over-representation of Indigenousoffenders in Canadian prisons and penitentiaries and constitutes a reasonable alternative in all the circumstances. While I have rejected aprobationary sentence as inadequate, in my view, a penitentiary sentence on top of the time already served would be excessive, and Ireject it as a fit penalty, as well. [63] In R. v.

Anderson, 2014 BCSC 2546, the accused was convicted of breaking and entering to commit theft, contrary to s. 348(1)(b)of the Criminal Code; masking his face with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code;unlawfully confining, contrary to s. 279(2); and assault with a weapon, contrary to s. 267(a). In considering the Gladue factors andefforts at rehabilitation of the accused, Justice Fenlon, as she then was, stated: [17] A range is not, however, a straightjacket. As Mr. Justice Bastarache said in R. v.

Stone at para. 244, speaking for the Court: … it would be wrong to assume that there is any “precise range that will apply to every case". He went on to say that it is intended for a trial judge: … to balance uniformity in sentencing with their duty to consider the circumstances of the particular case. [18] I conclude that this is a case in which departure from the range is appropriate. Indeed, if I am to do more than pay lip service tothe principles articulated in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688 I am compelled to depart from the usual range.That is not to say that a significant period of incarceration is not appropriate. That, too, must occur to meet the objectives of deterrenceand denunciation. But the history of Mr. Anderson does not in general suggest a long sentence is required to protect the public. As I havenoted, this is his first violent offence. [64]

Section 742.1 of the Criminal Code allows the court to order an offender serve a custodial sentence in the community, providing

an opportunity for alternatives to incarceration and for out-of-jail rehabilitation. Recent amendments to 714.2 allow the court to consider a CSO where it was not previously available in certain offences. In Proulx , the Supreme Court emphasized that a CSO can also have a deterrent and denunciation impact at paragraph 22: Combining a CSO with a lengthy and stringent term of probation may also assist in bringing a sentence within a suggested range, while also promoting and assisting an offender's rehabilitation.

See also: Ellis at 176, and Louie at 34. [ 65 ] A court must be satisfied that serving a sentence in the community, subject to strict conditions, would not endanger the safety of the community in any way, and that it is a sentence which is consistent with the fundamental purposes and principles of sentencing.

In such cases, drafting the conditions of the proposed CSO is critical in ensuring that those objectives are met. [ 66 ] Absent detailed conditions, I cannot agree in this case that the CSO, as proposed by the defence, is appropriate in the circumstances. [ 67 ] After consideration of the circumstances of Mr. Suel, the gravity of the offences for which he is convicted, aggravating and mitigating circumstances, the purposes and principles of sentencing, I find that the sentence proposed by the Crown is not appropriate.

In particular, as I have said, I do not believe that the proposed sentence, exceeding as it does by one year that of his co-accused, addresses in any way Mr. Suel's Gladue factors. In the absence of CSO conditions I could not agree with the sentence proposed by the defence. The evidence before me was that Mr. Suel had taken considerable steps to rehabilitate himself. And though I agree a custodial sentence of some form is appropriate, I find that imposing the term of imprisonment of four years proposed by the Crown would not be just in the circumstances.

In that respect, I adopt the reasoning of Justice Marchand in Kehoe , and Justice Fenlon in Anderson as outlined above. Sentence [ 68 ] Mr. Suel, please stand. [ 69 ] In my view, a custodial sentence of 30 months with credit for time served is appropriate to be assessed between the two charges as follows. For the charge of 348(1)(a), I sentence Mr. Suel to six months of incarceration with credit for time served. On the count of aggravated assault, contrary to s. 268(2) of the Criminal Code , I sentence Mr.

Suel to 24 months with any additional credit for time served to be deducted from that amount. [ 70 ] With Mr. Suel's consent, I direct that a copy of his Gladue report be forwarded to the Corrections supervisor for the sole purpose of assisting in determining appropriate resourcing and programming to support Mr. Suel in his further rehabilitation. [ 71 ] I further strongly recommend that Mr. Suel be given access to and support in accessing, programming which focuses on his Indigenous identity and the intergenerational trauma outlined in his Gladue report.

It was clear to me, on a review of that report, and on submissions of counsel, that the impact of Indian Residential Schools, the child welfare system, the Sixties Scoop, has become, in some senses, hereditary, in his life, impacting himself and his children. That history needs to somehow be addressed, and my intent with this sentence is to reflect the reduced moral blameworthiness shown through the history of Mr. Suel. [ 72 ] I wish you good luck, sir. [DISCUSSION WITH COUNSEL FROM 1:32:26 P.M. TO 1:34:45 P.M.] [ 73 ] All right. So I am going to waive the victim surcharge. [ 74 ] CNSL M.

WRAY: And there are mandatory ancillary orders, Justice. So on Count 2 and Count 5, both– as Count 5 involved a dwelling house, both are primary mandatory DNA offences. And in terms of Count 1–or, sorry, Count 2, which is, I believe, the aggravated assault, as it involves violence against a person, s. 109 of the Criminal Code , which is a mandatory firearms prohibition, Mr. Suel, on his record, has a prior mandatory– or has a prior firearms prohibition, so the term of this would be for life. [ 75 ] THE COURT: Mr. Watt. [ 76 ] CNSL J. WATT: That's correct. [ 77 ] THE COURT: All right.

So, we will note, then, that there is mandatory firearms prohibition under s. 109 , and also make the ancillary DNA order, given the nature of these offences. “A. Walkem J.”