R. v. Joseph Date:, 2013 BCPC 199

Citation: R. v. Joseph Date: 20130507 2013 BCPC 0199 File No: 150799-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES CARL JOSEPH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: J. MacAulay Counsel for the Defendant: G. Wool Place of Hearing: Surrey , B.C. Dates of Hearing: April 6, 7, 8, 20, 21, 22, 23, May 20, 2009; September 7, 8, 15, 17, December 1, 2, 3, 13, 14, 2010; May 2, July 28, 2011; January 5, 6, May 11, July 30, November 13, 2012; January 31, March 20, 2013 Date of Judgment: May 7, 2013

[ 1 ] THE COURT : These sentencing reasons will follow a pattern where I will deal with a list of headings in the following order: one, the facts; two, the circumstances of the offender, Mr. Joseph; three, the Crown's submissions as to sentence; four, the defence submissions as to sentence; five, the applicable legal principles and legal analysis of sentencing as it pertains to this Aboriginal offender, and, lastly, the conclusion that I have come to based on the application of the appropriate principles of sentencing and the circumstances of this individual offender. I.

THE FACTS [ 2 ] The proceedings at trial took place here in Surrey, British Columbia, on the dates of April the 6th, 7th, 8th, 20th, 21st, 22nd and 23rd, 2009. The Crown called a number of witnesses, nine in total, including one conservation officer, Mr. Copeland, who provided peripheral circumstantial evidence, what one could call structural framework evidence in terms of the identification photographs and the finding of items in the area of the home of Christine Baker at 202 Kaylela Place on the Seymour Reserve in North Vancouver, British Columbia.

In addition, there were eight First Nations or Native American witnesses who were called by the Crown. They were: 1. The first cousin of the accused, Mr. Joseph, Christine Baker of the Squamish Nation and who lives on the Seymour Reserve. 2. Ben James Hunt, who is of the Bella Bella First Nation and a carver himself, a man who is involved in the Aboriginal community in an arts and cultural sense. 3. Ralph Francis Harvey, who is a Navajo Native American and a member of the Native American Church. Mr.

Harvey lives in Goldendale near the Yakima Reservation in Washington State in the United States of America and he and his wife are friends of Mr. Joseph and Mr. Joseph's wife, Rose Brett. 4. Elaine Esprito, a Native American of the Yakima Nation who is the spouse of Mr. Harvey, testified about events in her home. 5. Marie Olney, a Native American of the Yakima Nation, who is the widow of Alan Olney, a former friend of Mr. Joseph in the Native American Church. Ms. Olney is also the aunt of Elaine Esprito and lives in the Yakima area. 6. Fabian Williams of the Burrard Band was called as a witness. Mr.

Williams commenced his spiritual journey in 1996 after about 25 years of being heavily involved in alcohol abuse and frequent visits to jail and courts. He has, since he quit drinking in 1996, earned a position as the keeper of a sweat lodge on the North Shore here in the Lower Mainland of the Province of British Columbia. Mr. Williams is also a member of the Native American Church and a person who has travelled to Native American Church ceremonies in company with the accused, Mr. Joseph. 7. Vanessa Rose Gonzalez of the Squamish First Nation is a dancer. She has taken

part in powwow ceremonies. Her father is also a carver. She came to know Mr. Joseph through her father, and Ms. Gonzalez lives at 206 Kaylela Place on the Seymour Reserve, two houses from the house of Christine Baker. 8. Chester D. Brown, Jr. is a Native American Navajo who lives in Arizona. He is a road man, part of the Native American Church and heavily involved in Native cultural activities. [ 3 ] I found a common theme in the testimony of all of the First Nations or Native American witnesses. That common thread was the sacred nature of their feelings for eagles.

There were numerous references to the state of dead eagle parts. If the parts were not cleaned, cared for and ceremonially treated, these witnesses expressed upset. Mr. Brown was angered. Mr. Hunt was of the view it was "bad medicine" to be present when eagles were being dismembered. Mr. Williams was moved to leave quickly from the home of Mr. Joseph's apartment in Vancouver when he had gone for a visit. Mr. Harvey and Ms. Esprito were upset at the nature of the parts of eagles being brought into their home near Yakima with children in the area. Ms.

Olney had the three eagle tails sent to her in a shoebox, cleaned by Mr. Harvey before she felt that she could touch them and use them for giveaways. Ms. Gonzalez was struck by the smell at the fire she observed in the summer of 2004. She said, "It smelled real bad and I didn't stick around long." [ 4 ] It is common to both the Crown and the defence case that eagles are sacred to the First Nations and Native American peoples. Eagles, particularly dead eagles and their parts, whether it be feathers, tail feathers, whistle bones, claws or talons, are to be treated with reverence and great care.

From a cultural perspective, it was clear from the testimony of the women that it was their view that women were to handle eagle parts only once they had been properly cleaned, or with permission. In particular, the testimony of Mr. Williams, who has imbued himself from the spiritual journey, was to the effect that eagle carcasses were to be properly returned to Mother Earth.

He described that the funeral pyre for an eagle is similar to that for a person and that it takes a long time to perform the proper ceremony, which should be observed for the return of the eagle to Mother Earth. [ 5 ] It was also apparent to the case for both the Crown and the defence that conservation officers have, since 2003 at least, given whole dead eagles to Aboriginal peoples. During cross-examination by Mr. Wool, it was clear that it was the position of the conservation officer, Mr.

Copeland, that there is one permit for each whole bird; that once a whole bird has been given out there are no permits for the parts of the bird later used in ceremony whether it be feathers, tail feathers, whistle bones, claws; or any other of the parts of the eagle being utilized in the Aboriginal ceremony. It is clear as well from the cross-examination conducted by Mr. Wool that many times conservation officers simply gave eagles to First Nation persons for social and ceremonial purposes without permits. That is clear on the evidence before me both at trial and in the subsequent applications by Mr.

Wool. [ 6 ] At the conclusion of the whole of the evidence, I was satisfied that there was only sufficient evidence to prove seven of the counts beyond a reasonable doubt. Those seven counts related to one count of trafficking, that being Count number 5, and six counts of possession of parts of eagles by Mr. Joseph. It is on those facts that he is to be sentenced here this afternoon. II. CIRCUMSTANCES OF THE OFFENDER

[ 7 ] I have had the benefit of extensive submissions from Mr. Wool, as well as the testimony of Mr. Joseph himself and the presentation of a pre-sentence report. Mr. Joseph has expressly and clearly voluntarily given a waiver of his Gladue rights report in respect of this sentence and he did so in open court, having had an opportunity to consult with his counsel, Mr. Wool. It may well have been that a complete Gladue report would have been very helpful for this court in the sentencing of Mr.

Joseph; however, given the volume of the materials and the length of time involved in this case, I am satisfied that I have more than sufficient materials to make findings of the appropriate level given what is articulated in the three decisions in the Supreme Court of Canada, which are applicable to this area and my legal analysis. [ 8 ] There is very little difference between the pre-sentence report dated the 8th of November, 2012 (I am going to deal with the family relationships, living arrangements and associates through the evidence, the sworn testimony of Mr.

Joseph), so I will not recount that portion of the pre-sentence report. I will deal with what I will call the financial circumstances of Mr. Joseph, as disclosed to the writer of the report. At page 5 of 10 of the pre-sentence report, in the third paragraph, the following was written: Mr. Joseph reports receiving approximately $140,000 from the Government of Canada as St. Michael's Indian Residential School was identified by the Indian Residential School Settlement Agreement. The subject alleges receiving the money under the common experience agreement and independent assessment process.

He claims he is no longer in debt and has been considering purchasing a residence with his common law spouse once this matter is behind him. [ 9 ] The only comment that I would make with respect to that is it is also my understanding that there is an outstanding fine from the 19th of January of 1994 in Kenora, Ontario, where Mr. Joseph was convicted of unlawfully having or selling, manufacturing tobacco and cigars and was fined in the amount of $23,330.46.

It is my understanding that he has not paid any of that fine. [ 10 ] Those are the only parts of the pre-sentence report which, in my view, were particularly significant for the purposes of sentencing; however, I will deal as well with a number of the convictions in dealing with Mr. Joseph's personal circumstances. [ 11 ] Mr. Joseph was raised in the traditions of two peoples through interactions with his paternal grandmother at Quatsino, a Kwakiutl background, and through learning and attending to Alert Bay, the ancestral home of his mother. His early years were difficult.

From birth to three years, he was at Quatsino with his paternal grandmother. His recall is not continuous due to the length of time that has transpired and his infancy at the time but it would appear that his mother and father were also in and out of the picture during those years. He was sent to a residential school from ages six to nine. To say that was difficult was characterized best in his evidence by him calling it "a form of hell." From the age of nine to 13, he was in Vancouver with his mother. That was a different form of prison.

His mother was addicted to alcohol and she passed away due to the ravages of that disease when he was 13. Mr. Joseph, at that time, had been in and out of foster care and from time to time he would be on the street. Initially, he tried solvents to dull the pain. Then as he got older, he became an alcoholic and a street person. He related to the court that he was stabbed three different times. [ 12 ] Somewhere during the course of the latter stage of his teenage years, he was moved to change.

I would infer from his oral history that that was due to the intervention of his grandmother, as well as his incarceration and his turning away from substance abuse to carving. He has been clean and sober now for over 31 years. He has informed the court that he quit drinking at 22 years of age and that is a good thing given his current health issue. [ 13 ] His teenage years involved him interacting with his paternal grandmother and his education came both from public school and by the after-school interaction with his paternal grandmother.

These educational events were, of course, interspersed with his substance abuse and his acting out due to his own ravaged condition due to alcohol. However, during the course of his interaction with his paternal grandmother, the oral history of his people was passed to him through his grandmother speaking with him. The oral history of his people is passed through a matriarchal chain. His grandmother did not speak English well. Mr. Joseph was trying to learn or re-learn what he had from infancy to three years of age his ancestral language.

His grandmother mostly impressed on him the need for him to maintain his mother tongue in order for him to understand it and to speak it and to know his lineage, his Indian name and the culture and traditions of his people. [ 14 ] As to how he came to know his traditional cultural ways and the interaction of his peoples with wildlife, Mr. Joseph was clear. He said about his teachers, "They didn't tell us. They showed us how to do things." When they travelled, and I am referring specifically to his grandmother and Mr.

Joseph, to their traditional lands at Quatsino, or when they went to Alert Bay, they would enter back into the ways of life of their people. At Quatsino, they lived on a small island across from Port Alice on the west coast of Vancouver Island. There were moose, sea lions, salmon, bear and berries. They came to know about collecting berries, fishing, hunting and potlatch at that time. The initial stage was up to three years of age. Mr. Joseph related that he can remember being shown by his grandfather how to do things. He was told to watch and copy what his grandfather did.

He was also, he said, able to remember as early as three, and he is now some 50 years after that, that he was made aware that he came from a long line of carvers. He was taken to the potlatch house by his grandfather, he said. He remembered that when they were in the potlatch house the language spoken was native to the people of the place where the potlatch was being held. He recalled that he was to stay with his grandfather during the potlatch ceremony at the potlatch house and copy what his grandfather did. Unfortunately, Mr. Joseph's grandfather passed away while Mr. Joseph was at the residential school.

He, therefore, lost contact with him. His step-grandfather, Godfrey Hunt, who was a carver for some 40 years, then became his mentor in relation to carving, showing him the interrelationship between canoes, totem poles and masks and the way in which those artefacts were created. [ 15 ] During his teenage years, from time to time, Mr. Joseph and his grandmother would leave Vancouver, as I have related, and stay on the reserves at either Quatsino or Alert Bay. During those visits, and I do not know the duration of those visits, Mr.

Joseph related that he was made aware of the carver lineage forming his family history. He was told by Godfrey Hunt and by his paternal grandmother that his great-great-grandfather was George Nelson from Quatsino. Mr. Nelson was a hereditary chief and a carver. A longhouse that he carved at Quatsino is, Mr. Joseph says, in the UBC Museum of Anthropology, something about which Mr. Joseph is extremely proud, as well he should be. He was also told of his grandmother's father, Harry Bee, who was a well-known carver who evidently carved the longhouse in Quatsino. It was during these summer visits as a teen that Mr.

Joseph first experienced within his clear memory and an

oral history of attending potlatches at either Kingcome, Port Rupert or Alert Bay. [ 16 ] It is apparent from the criminal record of Mr. Joseph that as a late teen he was in the throes of alcoholism. The first offences are minor offences. There is then a breaking-and-entering and theft in 1976 for which he was sentenced to one month concurrent in jail. There is a robbery in 1976 for which he received an 18-month definite and a one-year indefinite sentence. In 1979, a breaking-and- entering with intent; he was given eight months.

He escaped lawful custody twice and was sentenced to two months' consecutive on the first escape and three months' consecutive on the second escape. He was also convicted in 1988 in abduction of a female and jailed for six months. Then there is the Kenora, Ontario, significant offence. [ 17 ] It was during the initial stages of those criminal activities when he was 18 to 22 years of age that he was brought into carving.

The only reasonable inference from the whole of his testimony, and the portions of it which I am prepared to accept, is as he turned to his love of carving he was able to remain sober and turn away from substance abuse. His grandmother and his step-grandfather emphasized that he should maintain and keep alive his family's history of carving. He was encouraged by them to follow the traditional ways. He was taken duck hunting, deer hunting and moose hunting.

He recalled being shown how, once one killed a moose, one would cut out part of the heart and eat it, as well cut out part of the liver and eat it and as well drink the blood of the animal. It was part of the traditional ways, an understanding of the interplay between man and the animal, which was providing sustenance for the family. [ 18 ] As to his training as a carver, he did some of it as a result of reading books while in prison and as well he studied for a period of time with a part Kwakiutl and part Haida Gwaii carver.

He was told of how to carve eagle masks, thunderbird masks and the roles of eagles, thunderbirds and eagle down regalia at potlatch and how carvers in making of those artefacts are related to the tradition of the people attending the ceremonies. In that sense, Mr. Joseph gained further knowledge of the language of carvers, the lines, the drawings, the form and shape of masks and how they are important to the ceremonies of his people.

He, at no time, became fluent in his mother tongue but he was also clear in his testimony that although he cannot speak it he can understand it a bit and can follow those that are fluent in the language enough to get by. [ 19 ] From the whole of his testimony, I am satisfied that Mr. Joseph comes from a long and proud lineage of carvers and he is proud of that ancestry. The emphasis in his grandmother's instructions to him was one of maintenance of their culture, their traditions, their way of life and that Mr. Joseph try and learn the language in order to preserve it.

It was not education in the oral traditions and history of his people; it was instruction in his own lineage, his bloodline and the need for Mr. Joseph to pursue the proud tradition of carving. III. CROWN'S POSITION AT SENTENCE [ 20 ] Crown counsel, Mr. MacAulay, has emphasized the provisions of the Wildlife Act and the Wildlife Act Regulations in terms of sentencing. He has drawn to the court's attention that the sentencing provision here is 84(3)(

a) which provides for a first conviction as to Count 5 to a fine of not more than $50,000 or to a term of imprisonment of not more than six months. As to Counts 6, 11, 12, 19, 20 and 21, he advised that, pursuant to the combination of s. 33(2) and s. 84(1)(

c) and s. 84(5) that on a first conviction there may be a fine of not more than $25,000 or to a term of imprisonment. [ 21 ] In sum, Mr. MacAulay submitted that the fit and proper disposition in this case, having regard to the number of counts and the nature of the offence, is one which calls out, because of the principles of deterrence and denunciation for this type of administrative wildlife offence, for a period of incarceration. He submitted that the fit sentence was one to three months.

In addition, he submitted that the court may consider a fine in the range of $20,000 with ample time to pay, or a combination of incarceration plus the fine. He was also seeking an order prohibiting Mr. Joseph from any act or activity which would involve the possession of falconiformes for a period of one to three years and that, as well, the court contemplate the imposition of a period of community service. [ 22 ] He provided a significant number of cases to the court, in particular highlighting a number of them, including R. v.

Brian General , a decision of my colleague, Judge Hicks, in the Surrey Registry, 157510-2, a decision of April the 16th, 2007. In support, he cited the following cases: R. v. Shamrock Chemicals , February the 13th, 1989, from St. Thomas, Ontario; R. v. Kenneth Lamouche, et al , December the 14th, 1998, from the Judicial District of Edmonton, in Hinton, in the Province of Alberta, as well the Lamouche decision in the Alberta Queen's Bench, [2000] A.B.Q.B. 461; R. v. Weetman , a case cited by Mr. Wool, as well as R. v.

Lowry (phonetic), both decisions of my colleague Judge Bayliff in Williams Lake Weetman on August the 6th of 2002 and Lowry , December the 4th of 2009; R. v. Collins , March 29, 2007, of my colleague Judge Borowicz, as she then was, March 29, 2007, here in the Surrey Registry, 154700. I have referred to General . He also cited Judge Young's decision in Scalplock , May 2, 2007, at the Chilliwack Registry; R. v. Francis and Shaw , July 17, 2007, of Judge Lenaghan; as well as R. v. Visser , of my colleague Judge MacGregor, November 7, 2007; R. v.

Sampson , 2009, of my colleague Judge Blake from the Victoria Registry April 7, 2009; as well as Seymour and Seymour , November 24, 2011, by The Honourable Judge Hubbard in Duncan; and R. v. James , April 5, 2012, of my colleague Judge Gordon here in the Surrey Registry. IV. DEFENCE’S POSITION AT SENTENCE [ 23 ] Mr. Wool recounted all of the background and circumstances of his client but he particularly emphasized with respect to Mr.

Joseph's circumstances the initial trauma occasioned by the alcoholism, poverty and abuse visited on him due to his parents' difficulties, their attendance to residential schools and indeed Mr. Joseph's attendance for some three to four years at St. Michael's Residential School. The lost childhood has led to the addiction, the alcoholism, the abuse and Mr.

Wool pointed out that the court should consider the positions taken by justices in the Supreme Court of Canada and in the British Columbia Court of Appeal, particularly the Supreme Court of Canada in Gladue , and the British Columbia Court of Appeal by Madam Justice Ryan in Armbruster . [ 24 ] He pointed out that his client, at 14 years of age, was a young Aboriginal on the wrong side of the tracks. In Grade 10, he left school and he became a problem. He was in a cycle living on the streets making ends meet and otherwise getting into problems.

He said that he has been now over 32 years clean and sober and that the unlawful behaviour stopped when Mr. Joseph made his commitment to the Aboriginal society from which he came as a fourth-generation carver from a long lineage of carvers. He asked the court to find that by the mid-2000's, that being at approximately 2005, that Mr. Joseph was recognized as an accomplished carver of masks, totem poles, necklaces, cedar boxes and the like and he would sell these items for amounts ranging from a few hundred dollars to a thousand dollars each.

That he, as well, became an active participant with the Native American Church travelling all over Canada and the United States.

It was through his attendance to those places that he became aware that people would have a use for masks and staffs and boxes and thathe would get engaged in making items for people for ceremony, including eagle claws for staffs, feathers for headdresses or for masks. It was through that interaction with Native American people that he became engaged with Ms. Olney and Ms. Gonzalez and the peoplethe various tribes, including the Yakima Nation and the Navajo Nations as well as the Plains Indians. He said that he was asked by Ms.Olney to get eagle tails and he said that he would get some for her.

He recalls that he received the eagles from Rita Leong, who is anelder on the Chehalis Reserve. [25] It is Mr. Joseph's submission, through Mr. Wool, that he was not selling these parts, that they were being provided to people foruse at powwow or potlatch or in ceremony as part of the Native American Church and that they were not intended for commercial sale inany way. He said that with respect to all of it that there was only one count of trafficking and that his client did not understand that hewas in any way committing any unlawful act in the trafficking of these items by giving them. In Mr.

Wool's submission, it was not a"conventional trafficking" associated to either a longhouse, potlatch or commercial property. Mr. Wool argued that his client had neverthought of or heard of a permit for eagle parts and that in respect of the use and ceremonies that he was doing the appropriate ceremonyfor the birds. [26] In particular, Mr. Wool was critical of the coverage of the media and the media releases of the conservation officerssurrounding the finding of the dead eagles on the North Shore. The naming of Mr. Joseph and the association of Mr.

Joseph to the mediacoverage resulted in his client becoming a person connected to or responsible or associated to people who are involved in the slaughterof eagles, and people then stopped buying Mr. Joseph's pieces. He had no gallery access and although there were a number of peoplecharged, Mr. Joseph was the only person named. In Mr.

Wool's submission, on the whole of the evidence, that has been a particularlydifficult aspect of his client's being charged, the salutary effect and the negative aspect of this is one where he is, notwithstanding thesebeing regulatory offences, someone whose lifestyle and ability to earn monies has been significantly impacted by the nature of the mediacoverage. [27] In particular, Mr. Wool spent some time arguing on the aspect of parity.

He made passing reference to Ipeelee in the SupremeCourt of Canada and he also made reference to the impacts of the bail conditions on his client, including the inability of his client toattend to the United States of America as part of his bail conditions. He also highlighted that Mr. Joseph has Type 2 diabetes and that hehas the financial and emotional support of Rose Brett, as well as the people who are part of the extended family in which he lives. [28] There is some dispute as to his ability to earn monies or where monies are coming from. I am told there are three car accidents.

That was clear in the submissions. It was also confirmed by the pre-sentence report. I am told of the $142,000 in terms of the residentialschool settlement. I am told that although there may be three settlements from ICBC; Mr. Joseph has no funds. I am told that he wasearning somewhere from eight to $10,000 per month selling canoes, masks, totem poles and other carving work. The statement has beenclarified this morning by Mr.

Wool who said that that information was not understood by him when he told me that in the spring but infact his client is now earning something in the range of $3,000 per month, although there are infusions of cash when he sells artwork orwhen he receives funds through the residential school settlement. [29] It is in that context that the individual aspects of this offender are particularly significant for the purposes of the apt sentence tobe determined by the court. V. APPLICABLE LEGAL PRINCIPLES/LEGAL ANALYSIS [30] I will say this about the cases provided: Weetman and Lowry are not applicable to Mr. Joseph.

They are cases from theCariboo Chilcotin. In each instance, we are dealing with people who are, in the ranching context, killing eagles for the purposes ofmaintaining stock. Those circumstances are significantly more aggravated than the aggravated circumstances in this case and I find thatthey are of little assistance to me in determining the fit and proper penalty here. [31] I am also of the view that with respect to the case law provided by Mr. MacAulay that many of those cases are also moreaggravated than the circumstances of Mr.

Joseph in relation to this case. [32] There are aggravating factors to which I will refer which will bring this case within one that defines the fit and proper sentence. The paramount principles of sentencing in such wildlife regulatory offence provisions being deterrence, denunciation and the need tohave a fit and proper sentence which would deter others from committing similar acts in relation to the wildlife engaged in the instantcase. [33] There is more, however, in this case. I have made reference to a Gladue report.

I have not got the benefit of a Gladue report butI do have the benefit of the instructions from the Supreme Court of Canada in the most recent decision in the Supreme Court dealing withthe sentencing of Aboriginal offenders. I am referring to R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.C. 13, [2012] 1 S.C.R. 433,with a companion case of Gladue coming at the same date. The majority decision was written by Mr. Justice LeBel and there are anumber of the paragraphs which inform the sentencing here today and inform the analysis that I am to apply in considering theprinciples of sentencing.

The principles of sentencing which govern this matter are set out in the statutory legislative scheme in s. 178and the sections following. I am particularly mindful with respect to this offence that I must, as a purpose and principle of sentencing,denounce the conduct of Mr. Joseph. I am also aware that I must deter Mr. Joseph and other persons, in other words, general deterrence,from committing similar offences. I am not satisfied that the protection of the public requires the separation of Mr. Joseph from thesociety in which he lives for the protection of public.

I am not satisfied that there is a particular need for me to address rehabilitation inthe instance of Mr. Joseph and his motivations in this case. [34] I am concerned about him making reparations for harm done to victims and to the community. And I am concerned aboutpromoting a sense of responsibility in Mr. Joseph and an acknowledgment of the harm done to victims and to the community which hedid not seem to understand in his statement to the court this morning. [35] I will deal with that as I deal with Ipeelee and Gladue and Nasogaluak, the three decisions which inform this type ofsentencing.

Gladue is (SCC), [1999] 1 S.C.R. 688, Nasogaluak is 2010 SCC 6 , [2010] 1 S.C.R. 206 andIpeelee is, as I have said, [2012] S.C.C. 13. I am only going to refer to the paragraphs in Ipeelee in the majority decision, which, in my

view, inform the issue and explain further the sentencing of Aboriginal offenders in our courts. At paragraph 57, after making reference to a number of statistical aspects relating to the number of Aboriginal persons in the jails, Mr. Justice LeBel quoted from the report of the Aboriginal Justice Inquiry of Manitoba, one of them being The Honourable Judge Sinclair, and said this: The Canadian criminal justice system has failed the Aboriginal peoples of Canada - First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural - in all territorial and governmental jurisdictions.

The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice. He continued at paragraph 58: The overrepresentation of Aboriginal people in the Canadian criminal justice system was the impetus for including the specific reference to Aboriginal people in s. 718.2( e ). It was not at all clear, however, what exactly the provision required or how it would affect the sentencing of Aboriginal offenders.

In 1999, this Court had the opportunity to address these questions in Gladue . Cory and Iacobucci JJ., writing for the unanimous Court, reviewed the statistics and concluded, at para. 64: These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.

It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2( e ), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. [ 36 ] Now, in s. 718.2(e), the court is told to consider "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders," and then I would highlight this, " with particular attention to the circumstances of Aboriginal offenders ." (emphasis added) [ 37 ] That is not the only sentencing provision.

The fundamental principle of sentencing is set out in s. 718.1, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. That is the overarching principle of sentencing. Justice LeBel, at paragraph 59, continued, however, and dealing with the Aboriginal question, wrote this: The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing ( Gladue , at para. 93 ). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders ( Gladue , at para. 37 ). When sentencing an Aboriginal offender, a judge must consider: (

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

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

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66 ). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84 ).

Commonly referred to as a Gladue report. [ 38 ] We are also told to consider s. 718.2(b), that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." One would ask is a similar offender going to have to be an Aboriginal person. I would submit that that is the only appropriate determination of the parity principle articulated in 718.2(b).

I must also consider (d), "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances." That leads to other sanctions being considered other than imprisonment. [ 39 ] I return to Ipeelee . Justice LeBel, at paragraph 67, quoted from Professor Quigley from Saskatchewan and the issue outlined in a paper written by him and numbers of points raised at paragraph 67. In his quote from Professor Quigley, he said this: Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria.

They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail.

This is systemic discrimination. [ 40 ] It is not, and I want to point this out, it is not a circumstance where there is an automatic reduction of a sentence or omission of a warranted period of incarceration simply because the offender is Aboriginal. That was rejected in Gladue . Justice LeBel wrote at

paragraph 71: In Gladue, this Court rejected Ms. Gladue’s argument that s. 718.2(

e) was an affirmative action provision or, as the Crown described it,an invitation to engage in “reverse discrimination” (para. 86). Cory and Iacobucci JJ. were very clear in stating that “s. 718.2(

e) shouldnot be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because theoffender is aboriginal” (para. 88 (emphasis added)). This point was reiterated in R. v. Wells, 2000 SCC 10 , 2000 SCC 10,[2000] 1 S.C.R. 207, at para. 30. There is nothing to suggest that subsequent decisions of provincial and appellate courts have departedfrom this principle. In fact, it is usually stated explicitly. For example, in R. v. Vermette, 2001 MBCA 64 , 2001 MBCA 64,156 Man. R. (2d) 120, the Manitoba Court of Appeal stated, at para. 39: The

section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that thesentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative andinnovative solutions. [41] We are not dealing with a circumstance where following Gladue, Nasogaluak and Ipeelee, a particular crime which warrants asignificant sentence would result in a discount.

We are dealing with a circumstance where the Aboriginal character of the offender mustbe considered in trying to achieve what is clearly required in the fundamental principle of sentencing and, that is, the individualizedtreatment of each offender having regard to the degree of responsibility of the offender and the seriousness and gravity of the offence. VI. CONCLUSION [42] I will keep those factors in mind as I turn to a consideration of the mitigating and aggravating factors in this case. I will dealfirst with the mitigating factors. I am satisfied, Mr.

Joseph, that there are significant mitigating factors in the case of yourself. Thehistorical issues are clearly outlined not only in your testimony but in the testimony of the other persons who have been before the courtdealing with Aboriginal issues. You have been a person who not only has suffered as a result of family being at residential schools butyou suffered the indignity of being placed in a residential school and taken away from your family between the ages of six and nine. You have your addiction issues under control. You became an alcoholic and a drug user.

You then became clean and sober and thatfact, the fact that you have your addictions under control, has to be a mitigating factor in imposing this sentence. You have, however,health issues. Your Type 2 diabetes is a circumstance where you have ongoing treatments and blood work. There are no new offences. You have the support of Ms. Brett. Your candour before the court has been recognized by the court. You were vilified in the publicforum by media coverage.

All of those factors, including their impacts on your ability to earn a living are understood by the court asmitigating factors. [43] I turn now to the aggravating factors. The aggravating factors in my view include the following. Your criminal record is notsomething to be proud of. I am satisfied on the basis of the evidence before me at trial that you were involved in the treatment of thesecarcasses in a fashion which was not appropriately ceremonial. I do so on the basis of Mr.

Williams' testimony, as well as the testimonyof those in Yakima who were concerned about the nature of the carcasses and the blood remaining thereon. I am also satisfied on thebasis of the nature of the burnings going on, on the North Shore in which you were engaged in disposing of eagle carcasses, that that wasnot being done with appropriate ceremony.

I find that those activities, as disclosed in the evidence, are aggravating factors. [44] I am also aware that although this was not purely commercial in the sense that you were selling these items, that you were aswell involved in the barter and trade of eagle feathers and parts for the purposes of you acquiring fans from others in the United States ofAmerica and to that extent this was an activity for profit as well as for ceremonial purposes. I am particularly drawn to that because yourhistory is as a carver. Your lineage is as a carver, not as a maker of fans. The number of counts is also of some concern.

It was doneover a period of time. When I look at the whole of those aggravating factors, I am satisfied that we have a significant number of eagleparts in circumstances where you were not treating those eagle parts with sufficient dignity and ceremony and that that should lead to amore serious consideration from the court. [45] It is apparent from my findings of fact that I am of the view that your possession of these eagle parts and your trafficking interms of Count 5 is one of the means by which the exploitation of our natural environment occurs and its future may be placed at risk.

Iam also mindful of the fact that we had almost 12,000 eagles back this last fall at Harrison and we must all be very happy to see thereturn of that number of this revered creature. However, when we see the effects of exploitation of our creatures in the wild, I am of theview that it is appropriate for the court to have a concern that general deterrence must be emphasized in this sentencing. I am not of theview that personal deterrence is required in your instance. You were clear today that you did not understand it.

I can only hope that thecourse of this proceeding and the nature of the sentence today will further bring home to you that this activity is not one which societywill accept whether one is white, Asian, Aboriginal, black, no matter who one is, it is not something which our society will accept. [46] Given that and to the extent that I can, having regard to the other balancing factors, I am of the view that I must impose asentence to deter others and it must be balanced appropriately against your individual circumstances. [47] If you would stand up, please, Mr. Joseph. With respect to Count 5.

No, sir, you sit down. [48] MR. WOOL: Why? I'm an officer. [49] THE COURT: You will sit down. Mr. Joseph, you may come forward. Thank you. Mr. Joseph, you are in a position whereyou have some income. You are in a position where there has been money coming in. You are in a position where I am obliged toimpose a deterrent form of sentence. I can tell you I am not going to send you to jail. In my view, having regard to the balancing factors,jail is not appropriate sentence for you but there will be a monetary penalty. As to Count number 5, the penalty will be $5,000.

That willbe made up of a fine of $1,000 and $4,000 to go to the Habitat Fund. The Habitat Fund, Madam Registrar, is 84.1(1)(

e) of the WildlifeRegulations and that is the penalty provision.

[ 50 ] THE CLERK: Thank you, Your Honour. [ 51 ] THE COURT: With respect to Count 6, Count 11, Count 12, Count 19, Count 20 and 21, there will be a fine on each of those counts of $500 and there will be $500 further to go to the Habitat Fund for each of those counts. That will lead to total fines involving all of those counts and penalties of $3,000 each; $3,000 by way of fine, $500 on each count, and $3,000 by way of payment to the Habitat Fund, leading to $3,000 for a total penalty of $11,000. [ 52 ] You will not have in your possession any falconiformes for a period of one year.

The Crown asked for three, one to three. I'm going to restrict to one year. I am not going to impose community service in your instance. As to time to pay, I will entertain submissions, Mr. Wool. Please have a seat, Mr. Joseph. (SUBMISSIONS BY COUNSEL) [ 53 ] THE COURT: The fine will be paid by 4:00 p.m., Friday, the 30th day of May, 2014. As to collection of the fine beyond that date, I will leave that to the authorities that are appropriate to deal with that. (REASONS FOR SENTENCE CONCLUDED)