R. v. Franklin, 2021 MBPC 58

CITATION: R. v. Franklin, 2021 MBPC 58 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Sara Minshull, ) ) for the Crown - and - ) ) ) Harvey Franklin ) ) Eric Wishnowski, for the Accused ) ) ) Reasons for Decision ) Delivered: November 5, 2021 Krahn, A.C.J. Introduction [ 1 ] Harvey Thomas Franklin has pleaded guilty to aggravated assault. He admits he assaulted an acquaintance with a cane causing significant and lasting injuries. The question for me to decide is what is the appropriate sentence, taking into account Mr.

Franklin is an Indigenous man with multiple mental health diagnoses and substance abuse disorder. Circumstances of the Offence [ 2 ] It was 4:00 am on January 1, 2021, when the victim, 57-year-old Mr. Clark Searle answered his door. He found Mr. Franklin there. Mr. Searle’s address was associated to Mr. Franklin so the police had been there earlier looking for Mr. Franklin on an outstanding warrant. As a result, Mr. Searle was reluctant to let Mr. Franklin into his suite. However, he agreed to let Mr. Franklin in to use his telephone. As he turned to lead Mr. Franklin into the suite, Mr.

Franklin grabbed a hollow, aluminum cane belonging to Mr. Searle’s girlfriend that was standing beside the door and began hitting Mr. Searle about the head. Mr. Searle fell to the floor and tried to use his arm to fend off the blows. Mr. Searle suffered a deep laceration to the back of his head and a broken finger. [ 3 ] Mr. Searle provided a victim impact statement. In the statement, he explained the attack was unprovoked and came without warning. He said Mr. Franklin only stopped striking him with the cane when the cane broke.

He described his continued fear of being attacked “by anybody out of the blue.” He said he received regular nursing care for three months. The nurse would change the dressing for his head wound, described as a “deep hole” in the back of his head, which would not heal. He said he suffered a concussion that lasted three weeks. He is still unsteady on his feet, walks slower and has tremors. He keeps items like a chair or wooden box by his door so people will not be able to get in. Clearly, the assault was a serious one and has had a lasting impact on Mr. Searle. [ 4 ] On the day this matter was set for trial, Mr.

Franklin entered a guilty plea to aggravated assault. [ 5 ] The Crown asks the Court to impose a four-year sentence, recognizing Mr. Franklin’s challenging background but emphasizing, given his related criminal record, the Court must separate a violent offender from society. Counsel for Mr. Franklin asks me to impose a sentence which recognizes Mr. Franklin’s extraordinarily challenging circumstances and seeks a sentence of 18-24 months incarceration, followed by a two to three year period of supervised probation. Mr.

Franklin’s counsel says such a sentence would recognize sentencing principles of denunciation and deterrence but allow Mr. Franklin to maintain his relationship with caseworkers in the provincial system. Principles of Sentencing [ 6 ]

Section 718 of the Criminal Code sets out the principles of sentencing that must be considered by a sentencing judge. The fundamental purpose of the sentence is to protect society and to contribute to a peaceful, safe and just society.

Some of the objectives of the sentence can be to communicate society’s condemnation for the unlawful conduct and recognize the harm done to victims and society by the criminal conduct; to deter the offender and others from committing similar crimes; to separate the offender from society when necessary; to aid in the rehabilitation of the offender; to provide reparations for the harm to the victim and the community; and to promote a sense of responsibility in offenders.

[ 7 ] The essential component of every sentence is that it should be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 8 ] A sentencing judge is required to consider the aggravating and mitigating factors in the circumstances of the offence and the circumstances of the offender. [ 9 ] Mr. Franklin is Indigenous. Therefore I must consider the systemic and historical context of the treatment of Indigenous people in this country and the impact this has had on Mr. Franklin, see

section 718.2 (

e) of the Criminal Code . Mr. Franklin’s Criminal Record [ 10 ] Given the Crown’s emphasis on the pattern and history of violent offending to support their sentencing recommendation, I will begin with Mr. Franklin’s criminal record, focussing on his violent offences, before I review Mr. Franklin’s background.

His youth record can be summarized as follows: June 16, 2009 Assault with a weapon Time Served (105 days), 2 years probation, concurrent on all charges Assault (2 chgs) Fail to Comply Undertaking Possession of Property Obtained by Crime There are breaches of court orders and Uttering threats charges in 2009 and 2011.

December 9, 2011 Assault a Peace Officer Time Served (30 days), 18 months Probation concurrent Fail to Comply with Disposition March 27, 2012 Assault Time Served (30 days), concurrent Mishief Under Fail to Comply with Disposition [ 11 ] As an adult, he has the following convictions: September 30, 2013 Assault Time Served (45 days), 2 years Probation December 12, 2013 Assault 115 days, 2 years Probation (35 days pre-sentence custody) January 15, 2014 Utter threats 60 days consecutive to sentence being served [ 12 ] The forensic report, filed in connection with charges against his brothers, described below, reports some of the assaults on his record were against his domestic partner while another was on a doctor (psychiatrist) at the Victoria General Hospital. [ 13 ] The Crown filed with the Court a series of sentencing transcripts, which describe the circumstances behind more recent violent convictions on Mr.

Franklin’s criminal record. 1) February 4, 2015 – Guilty plea to aggravated assault and assault with a weapon on two of his brothers, Alvin McDonald and Vernon McDonald, which occurred on June 27, 2014. The assaults were preceded by the victims calling Mr. Franklin names and throwing things at him. Alcohol was being consumed by all involved. Mr. Franklin stabbed Vernon McDonald in the face resulting in a two- inch laceration below his right eye.

Alvin McDonald was stabbed multiple times resulting in a stab wound to the right chest, stab wound behind the right shoulder, punctured right lung and a 5-inch laceration to the back, right side of his head. The brothers declined to cooperate with the police and one told the accused loudly in the courtroom, not to plead guilty to the charges when the pleas were entered. This outburst caused Mr. Franklin to break down crying and delay his sentencing, but he did maintain his guilty plea. Mr. Franklin was 19 at the time. Mr. Franklin said he had a poor recollection of the event.

Sentence imposed: 20 months incarceration (less time in custody) and two years probation. 2) August 14, 2017 – Guilty plea to assault and breach of probation from an assault on a nurse at the Poplar River Nursing Station on March 11, 2017. Mr. Franklin was intoxicated and outside the Nursing Station pleading for help. The nurse was familiar with Mr. Franklin, took him into the nursing station and administered fluids intravenously. Mr. Franklin became frustrated and began rummaging through drawers in the nursing station. The nurse had removed a syringe and needle from him when Mr.

Franklin punched or head- butted him in the face, knocking him to the ground and then kicked him in the leg. Mr. Franklin expressed his remorse for his actions and said he could not remember the incident. Sentence imposed: Six months incarceration (less time in custody) 3) July 23, 2018 – Guilty plea to assault cause bodily harm to a manager of a Legion Hall committed on November 24, 2017. Mr. Franklin had been ejected from the Legion Hall and was refusing to leave the area, yelling at other customers. Mr. Penner, the manager, approached him. Mr. Franklin was demanding his money back. Mr.

Penner told him he had already spent the money inside. Mr. Franklin then head-butted Mr. Penner in the mouth. As a result of this assault, Mr. Penner’s two front teeth were pushed back in his mouth. Mr. Penner was at risk of losing his two front teeth and sustained a laceration to his lip, which required a suture to close. The Crown requested a sentence of two years. The sentencing judge was erroneously not provided with Mr. Franklin’s youth record at this hearing. Sentence imposed: Six months incarceration and 18 months probation

[ 14 ] These convictions are followed by numerous convictions for breaching court orders and theft unders in 2019 and 2020. The final violent conviction was for a robbery on November 10, 2020. He received a sentence of 49 days and Probation for one year, after being credited for 401 days pre-sentence custody. His counsel explained the circumstances of the robbery were that Mr. Franklin went into a 7-Eleven Convenience store, gestured to his waistband to indicate he had a weapon and stole cigarettes. His counsel explained the circumstances reflect how vulnerable Mr.

Franklin is to suggestion from others, as it was others who sent him out to steal the cigarettes. His counsel says no physical violence was used in the robbery. [ 15 ] This conviction was followed by convictions on November 26, 2020 for three theft under $5000 and two charges of fail to comply with court orders. He was sentenced to a total of two months incarceration and two years probation. Mr. Franklin was released 30 days early on that sentence with a condition that he maintain daily telephone contact with the sentence supervisor.

He failed to maintain that contact, was unlawfully at large on that sentence when he committed the aggravated assault before me. He was convicted of the unlawfully at large on February 21, 2021 and received a sentence of 49 days after being credited for 21 days pre-sentence custody. [ 16 ] In addition to his criminal record, the Pre-Sentence Report (PSR) notes during the many periods of time he has been incarcerated, Mr. Franklin “has accumulated in excess of forty incident reports from Correctional staff.

Incidents range from disobeying orders to violence against other inmates and threatening correctional staff.” [ 17 ] In

summary, Mr. Franklin has 12 previous convictions for violence on his record, 20 convictions for breaching court orders and 11 property offences (the majority of which are theft under $1000 offences). His criminal record certainly supports the Crown’s position that the protection of society and separation from society should be the sentencing principles that should receive the most emphasis from the Court. His criminal record is an aggravating factor in the case before me and disentitles him to leniency. But it is incumbent upon me to look at Mr.

Franklin’s background to place this criminal record into the proper context. Background of Mr. Franklin [ 18 ] Let me turn to Mr. Franklin’s personal circumstances and mental health issues. I have relied on the PSR prepared for this sentencing, a supplementary PSR prepared in July 2018 (and filed with the Court in relation to the assault charges against the Legion manager), medical records from the Selkirk Mental Health Center dated 2016 and a forensic report prepared in 2014 in connection with the assault charges against his brothers. [ 19 ] Mr. Franklin is one of 10 siblings.

He and his siblings were removed from his parents’ care when he was four due to his parents’ excessive alcohol consumption and resulting negligence. He was taken into the care of Child and Family Services (CFS). He was separated from his siblings and moved between approximately 15 different foster and hotel placements. He reports feeling very isolated and alone during his growing up years. He found the CFS placements overwhelmingly negative. He says he suffered emotional, physical and sexual abuse. As a result, he frequently ran away from these placements. [ 20 ] By the time Mr.

Franklin was 11 years old, his father had stopped drinking. Mr. Franklin and one of his sisters were returned to his father’s care for a time. He continued to witness drinking parties and subsequent violence in the home. He now does share a positive relationship with his father, but the contact is generally limited to when he is in the community of Poplar River. However, he is currently banned from the community of Poplar River due to his substance abuse and criminal history. [ 21 ] A number of the reports refer to a near-drowning incident, which occurred when Mr. Franklin was 18 months old.

His father described how Mr. Franklin had been in the water for 15 to 20 minutes when the father recovered him. At first, he was not breathing but on the way to the nursing station he suddenly started breathing. His father suspects this may be related to his current mental health issues. [ 22 ] Mr. Franklin started drinking alcohol at the age of 10. He says he would drink to blackout and “escape” his foster placements. As an adult, he began to use harder drugs such as cocaine and since the age of 23 has used methamphetamine. Mr.

Franklin is reported to have told the writer of the pre-sentence report he was not using methamphetamine on the night he committed the aggravated assault. Mr. Franklin acknowledges his substance abuse is problematic and he would like to get treatment for his substance abuse. [ 23 ] Mr. Franklin reports he started to experience visual and auditory hallucinations when he was 14. The pre-sentence report prepared for this offence indicates he was diagnosed with schizophrenia.

The writer of the PSR says he was prescribed medication for this but he is inconsistent in taking the medication because he does not like the way it makes him feel. [ 24 ] The PSR says a previous probation supervisor reported “client has in utero exposure to impacts of alcohol.” During submissions, Mr. Wishnowski said Mr. Franklin was the only one of his 10 siblings to not be diagnosed with Fetal Alcohol Spectrum Disorder (FASD). Given the inconsistent information, I asked for additional submissions and additional medical records to address this issue. [ 25 ] In R. v.

Catcheway , 2019 MBCA 75 at paragraph 44 , the Court of Appeal said: The fundamental principle of sentencing is proportionality, which includes the degree of responsibility of the offender (see

section 718.1 of the Criminal Code ). A mental disability can have a significant impact on an accused’s degree of responsibility and, therefore, his or her moral culpability and prospects for rehabilitation. This, in turn, can have an impact on sentence. When an accused’s personal circumstances include a mental disability, it is of the utmost importance that as much information as possible be provided to the judge so that the sentence fairly addresses the degree of responsibility of the offender. [ 26 ] In R. v.

J.M.O. , 2017 MBCA 59 at paragraph 73 , the Court of Appeal directed trial judges to consider “cogent evidence that the offender suffers from a recognized mental illness or other cognitive limitation” and assess the relationship of such a limitation to the offending conduct. [ 27 ] To that end, counsel filed with the Court reports from the Selkirk Mental Health Centre labelled Psychiatric History and Evaluation, Separation

Summary, dated September/October 2016. Unfortunately, the medical records filed do not help reconcile or

explain the diagnosis of Alcohol-Related Neurodevelopmental Disorder (ARND). [ 28 ] The psychiatric history reveals the community mental health worker referred Mr. Franklin to the Selkirk Mental Health Centre due to daily, intrusive suicidal thoughts, depression and the hearing of voices. The records say he was admitted on September 22, 2016 and discharged on October 6, 2016. He was 21 years old at the time. He is noted as “Borderline Intelligence Quotient” – score ranging from 70-79.

Under “Family History” there is a notation, “9 out of 10 siblings have been diagnosed with Alcohol Related Neurodevelopmental Disorder”. Mr. Franklin is noted as being the second youngest. At the end of the Psychiatric History and Evaluation, under a heading entitled DSM-V Diagnosis, there is a diagnosis of 1) Alcohol-Related Neurodevelopmental Disorder; 2) Personality Traits (anti-social), 3) Rule Out Unspecified Schizophrenia Spectrum and Other Psychotic Disorder. The Separation

Summary says it was explained to Mr. Franklin he does not have depression, schizophrenia or a psychotic disorder. A doctor explained to Mr. Franklin he may experience voices more related to his ARND and borderline intellectual functioning. He was prescribed anti- psychotic medication for a course of six months. These medical records do not report that an FASD assessment was actually conducted on Mr.

Franklin so the basis for an ARND diagnosis is not clear. [ 29 ] I have also reviewed the Supplementary PSR dated July 11, 2018, filed as an exhibit as part of the sentencing for the assault cause bodily harm against the manager of the Legion Hall, described above. This PSR refers to periods of time where Mr. Franklin maintained sobriety. He was expressing interest in both substance abuse and mental health treatment. This PSR provides information from a clinical counsellor at New Directions, Mr. Hatcher, who reported Mr. Franklin had cognitive, psychiatric and intellectual challenges. Mr.

Franklin would drop-in to New Directions with some frequency although he is noted to be “not technically a participant in their current programs.” Mr. Hatcher says he was introduced to Mr. Franklin because they were providing services to his brother, who does have an FASD diagnosis. Mr. Hatcher reported Mr. Franklin’s mother denied drinking during her pregnancy with Mr. Franklin so he said it did not appear Mr. Franklin was living with the effects of prenatal alcohol use. Mr. Hatcher reported Mr. Franklin has some speech difficulties so that he is difficult to understand. Mr. Hatcher opined some of Mr.

Franklin’s difficulties might be as a result of the near-drowning incident as a child. [ 30 ] As a result of the discrepant information in the Selkirk Mental Health Centre reports and the two PSRs, I am unable to conclude Mr. Franklin has FASD or ARND. Even if I did accept there is evidence he has ARND (based on the diagnosis recorded in the Selkirk Mental Health Centre records), I am unable to find a link between such a diagnosis and his offending behaviour. It must be recalled Mr. Franklin has no memory of why he committed the assault. And yet, there are other undisputed background factors, unique to Mr.

Franklin, that impact on a proportionally fit sentence. One factor is his cognitive limitations which appear consistently in all of the reports. A second is his consistent reporting to others his experience of hearing voices in his head. [ 31 ] I have reviewed the Forensic Report dated August 11, 2014, which was prepared in connection with the aggravated assault and assault with a weapon on his brothers. This Forensic Report was prepared to assist the Court in determining his fitness and whether he was criminally responsible for those offences. There was some basis for believing Mr.

Franklin was, on occasion, exaggerating or feigning some psychotic symptoms to attempt to be found unfit or not criminally responsible. He was not found to be suffering from psychosis at that time. He was found fit to stand trial and criminally responsible for the offences against his brothers. [ 32 ] A number of psychological tests were performed on Mr. Franklin for this assessment. One was the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV) which found his mental ability and intellectual functioning fell in the Borderline range.

I am mindful this forensic assessment was prepared seven years ago for a different purpose; I do find the reports reveal a consistent basis for finding cognitive or intellectual limitations. [ 33 ] The July 11, 2018 Supplementary PSR documents how Mr. Franklin was connected with Provincial Alternative Support Services (PASS).

It is noted the requirements for participation in this voluntary program are: 1) an “official denial” of mental health services; 2) official denial for Community Living disAbility Services (CLDS); 3) IQ just above 70 [1] (which makes a person ineligible for CLDS); 4) a lengthy criminal footprint; 5) deemed a high risk to re-offend; 6) FASD or non-Access 1 mental health issues. Mr. Franklin was admitted to this program in June 2018. [ 34 ] Mr. Akili attended the first day of the sentencing hearing (while he was on vacation) and testified. Mr. Akili has been involved with Mr.

Franklin since he first qualified for PASS. Mr. Akili explained they are not able to provide support if the individual receives a federal sentence or moves to a reserve, because this would require federal funding and PASS is a provincially-funded program. PASS funded Walking Stick to provide support services to Mr. Franklin. Mr. Mark Granger was the main case manager with the Walking Stick program. [ 35 ] Mr. Akili described Mr. Franklin as a person who is very vulnerable to being taken advantage of by others. Mr. Franklin’s counsel explained Mr.

Franklin is very susceptible to suggestion motivated by his desire to help others, so if he is asked to go steal a jacket, he will steal the jacket, even though there is no benefit to Mr. Franklin himself. Mr. Akili agreed with that assessment. I also note the earlier forensic assessment and PSR note Mr. Franklin was the frequent victim of assaults. [ 36 ] The PSR explains many of the theft charges on Mr. Franklin’s criminal record are for stealing alcohol. Mr. Akili described how he and Mr. Granger have exhausted numerous options to get Mr.

Franklin the treatment he requires so he can achieve some stability in the community. He described how many addictions treatment facilities will not assist him because he is pending on violent charges and has a history of violent convictions. It has also been difficult to find a treatment center which will address Mr. Franklin’s mental health issue as well as treat all the trauma from his upbringing. Mr. Akili said he believes Mr. Franklin when he says he is hearing voices. Mr. Akili said it was his and Mr.

Granger’s opinion that “Harvey [Franklin] requires intensive residential treatment away from Winnipeg, away from the core and all the bad influences.” Mr. Akili said they had been challenged by bad timing – for example, Mr. Franklin is ready to go to treatment but the wait list to get into a residential treatment program is six months. He said it has been a struggle to find adequate housing and supports for Mr. Franklin. [ 37 ] Mr. Mark Granger is Mr. Franklin’s case manager and is a program developer at Oshki-Giizhig. Oshki-Giizhig is an Indigenous-based non-profit organization offering a variety of programs.

The Walking Stick program offers community supports to those people who have an FASD diagnosis or face multiple health and safety challenges. Mr. Granger told me he has known Mr.

Franklin since November 2019. He said they have “a very functional working relationship. Harvey is very communicative about his personal state, his emotional state, the challenges he experiences in the community.” They help him to obtain housing, navigate the systems, keep probation appointments, keep food in the fridge, and make sure his rent and utilities are paid. [ 38 ] Mr. Granger also described he has been unable to access addictions programming for Mr. Franklin because of his mental health status and his criminal history. In order to address the gap they had noticed in the systems for Mr.

Franklin and people like him – people with complex mental health needs and a history of criminal offences that pose a barrier to receiving addictions treatment, Oshki-Giizhig began to speak to other organizations like the FASD Justice Program, Manitoba Justice, CLDS and PASS to build a rural Indigenous- centric healing and cultural restoration program that would be up to three months in length. The program would provide Indigenous ceremonial and cultural practices to help its participants overcome the trauma they have experienced, their disconnection from the community and their own history.

It would have some Western augmentation including a psychiatric nurse on site and other therapeutic professionals doing workshops. [ 39 ] Mr.

Granger explained: I love working with Harvey but when he goes into a carceral custody, it appears he doesn’t get addictions treatments, and so when he gets out, he is still highly addicted to drugs because nothing has changed except that he’s been in jail for a little while, and so – so I’m hoping that if we can, kind of, interrupt that cycle and – and have this wraparound healing and – and restoration that we can interrupt those cycles for Harvey and other people with similar challenges. [ 40 ] I will note here that when I asked and encouraged Mr.

Franklin to seek substance abuse treatment while he was in custody, and waiting to be sentenced on this charge, he told me (on August 16, 2021) they had just started offering substance abuse treatment again, but “it is too full to sign up.” (I am aware there were significant restrictions in therapeutic programs in Correctional facilities during the Covid-19 pandemic.) I encouraged him to put himself on the wait list. On September 3, 2021 when I asked him if he was receiving substance abuse treatment yet, I was told he was still on the wait list. The Pre-sentence report does not disclose any history of Mr.

Franklin getting substance abuse treatment. [ 41 ] In terms of mental health treatment, in the 2018 PSR, Mr. Franklin said he was in the Headingly Correctional Centre for much of two years, where he was housed in a single cell on the mental health range and he only got out for half an hour a day. Quite understandably, he reports this as being very hard and lonely. Although I do note, the same PSR also notes he attended the “Coping with Anger” workshop and worked as a barber in custody. This highlights the need for something beyond incarceration to begin to address Mr.

Franklin’s needs including the underlying trauma, which likely fuels his anger and substance abuse. This will ultimately reduce his risk to the public. [ 42 ] Mr. Granger expects the Indigenous-structured program will be available in six to eight months. In addition to the addictions treatment, Oshki-Giizhig is working on building second stage housing where potentially other people who have completed the treatment program could live and support each other. At this point, the program would be provincially-funded so it would likely not be available to Mr. Franklin if he receives a federal sentence. Mr.

Granger did not rule out the possibility they might apply for federal funding in the future. Mr. Granger says he knows of only two similar treatment programs – one in Kelowna and one in Sagkeeng in Manitoba (but that one is targeted for families.) [ 43 ] Mr. Akili and Mr. Granger both confirmed Mr. Franklin does engage with supports. Mr. Akili described Mr. Franklin as having a kind heart and he genuinely wants to help people. I note here this is a consistent theme in the reports. Ms. Dee Bissonette, an FASD Youth Justice Program Co-ordinator, who dealt with Mr.

Franklin when he was a youth is reported as saying everyone at the Manitoba Youth Center liked him, “he has a gentle spirit when sober.” Mr. Franklin reportedly kept in touch even as an adult by stopping by occasionally to say hello. His probation officer in 2018, Ms. Graham, said, “He has a good heart and is a good guy when on his medication.” Mr. Akili offered, when everything is in place for Mr. Franklin and he is sober, he does do well for someone with his background. However, Mr.

Franklin is very susceptible if someone comes along and offers him crystal methamphetamines, then there is a total change in his demeanor and he slides into very risky behaviour. Mr. Akili confirmed Mr. Franklin is very impulsive – a trait often seen with people who have FASD. [ 44 ] Mr. Akili explained he can access funding very quickly for people with the type of complex needs Mr. Franklin has, as his needs shift and move very quickly. But he is running into barriers in finding the right supports, particularly substance-abuse treatment for Mr. Franklin. [ 45 ] Mr. Granger explained his contact with Mr.

Franklin during his last short release in the community when this offence occurred. He said Mr. Franklin had been released with provincial benefits that were being distributed so he had ready means to purchase substances. Mr. Granger explained how Mr. Franklin was using substances and had gone days without sleep. Two days before the offence, he spent the day with Mr. Franklin and his connection with reality was very tenuous. Mr. Franklin spoke for hours about nanotechnology in vaccines and when “they” turn on 5G everyones going to turn into zombies. Mr. Granger believed Mr.

Franklin was using what was being called methamphetamine on the street but he had noticed even seasoned drug users were experiencing an immediate impact on their mental health – “like an immediate unhinging.” He spoke to Mr. Franklin’s community corrections worker explaining Mr. Franklin was in a bad way and needed a “timeout”. The police were called and had taken Mr. Franklin to the Health Sciences Center and “they just chilled him out and sent him on his way, and – and then two days later, I mean, he was in no better shape when he left the hospital.” I accept his evidence that Mr.

Franklin was abusing substances and that his perception of reality was compromised. As in the past when he has committed violent crimes, particularly those for which I have been given more detailed information as set out in this decision, Mr. Franklin’s abuse of substances means he is unpredictable. Indigenous Background [ 46 ] Mr. Franklin is from the remote, Indigenous community of Poplar River First Nation.

This community is described in the 2014 Forensic Assessment, quoting from an earlier PSR, as follows: Poplar River First Nation community has faced many adverse effects as a result of colonization and is making efforts to rebuild their

community and address inadequate resources community members face in comparison to the general population. The community hasseveral health and social services available, with the Band and Council making efforts to meet the needs of community members, andfoster traditional culture. The report indicated several areas where the community struggles; to note, approximately 80% of residents’source of income is from Federal Social Assistance, as there are few employment opportunities. Substance abuse is a significant problemin this community.

The community only has schooling for grades K-9, with students having to leave their home community for highschool education, which is problematic for most students, as they face obstacles related to inadequate funding, self-esteem issues, beinghomesick and racism. [47] Mr. Franklin identifies as Ojibway and says he is proud of his Indigenous culture although he would like to learn more aboutit. He has taken

part in Drum and Hoop Dance Ceremonies as well as Sweat Ceremonies. He would like to incorporate more of thesepractices into his day-to-day life. [48] Mr. Franklin reported his father attended residential school but he does not talk about it. He says his mother went for two daysbefore she ran away and never returned because her family hid her. [49] In R. v. Harper, 2021 MBPC 47 my colleague, Judge Devine, provided a very helpful review of the sentencingprinciples that apply when sentencing an Indigenous person. I need not repeat that review here. However, it is tragically noteworthy thecircumstances of Mr.

Harper are remarkably similar to those of Mr. Franklin. [50] In R. v. Ipeelee 2012 SCC 13, the Supreme Court said, [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed lighton 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’sconduct” (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntaryconduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities andlimited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actionswere not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50,after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such a childhoodand youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamentalprinciple of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of thecriminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ. state in Gladue, at para.69: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors inevaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to thecommunity of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevanceprecisely because the prevention of crime as well as individual and social healing cannot occur through other means. [74] The second set of circumstances — the types of sanctions which may be appropriate — bears not on the degree ofculpability of the offender, but on the effectiveness of the sentence itself. [51] These words resonate in Mr. Franklin’s case, as they do for many Indigenous people. Mr. Franklin has managed to achieve theequivalent of a grade 7 or 8 education.

He was repeatedly suspended from school due to his difficult and violent behaviour. While he isinterested in working, and has dreams of opening his own landscaping business, given the limited availability of jobs in his homecommunity, he has only worked odd or short-term jobs. His addictions have also prevented him from gaining the stability needed forfull-time employment. Mr. Franklin did not receive the nurturing and care he needed while he was growing up. His father and siblingsare noted to be involved in the criminal justice system.

He has moved back and forth between Poplar River and Winnipeg, whichinterrupts his access to the life supports he needs. I do find that Mr. Franklin’s “constrained circumstances” diminish his moralculpability. [52] I also find and accept that Mr. Franklin has expressed and feels remorse for his actions. His lawyer explained how he had toshare the police reports and review it repeatedly with Mr. Franklin in order to get him to accept what he had done. This is reflected inthe PSR (page 3 of 18): Mr. Franklin admits once he became aware of his actions he felt “crappy”.

He stated he could not believe he did what he did because heconsidered the victim a friend. The subject admits he felt remorse in that he caused his friend to receive stitches and broke his finger. Mr. Franklin admitted he has not spoken to the victim since the incident but wishes he could apologize. [53] Mr. Franklin’s guilty plea is another expression of his accepting of responsibility for the offence before the Court. This is amitigating factor. Crown’s Position [54] The Crown filed R. v. Kravchenko, 2020 MBCA 30 to support its position of four years.

In that case, Kravchenko attacked achild in a church bathroom. It was a brutal, unprovoked stabbing causing life-threatening injuries. The sentencing judge imposed a 10-year sentence, which was reduced to 8 years by the Court of Appeal. The Court of Appeal refused to “endorse a general range orstarting point for aggravated assault.” The Court noted the broad range of fact patterns that can arise in aggravated assault cases, whichmake them difficult for sentencing judges. The Court did endorse a range of four to eight years for an unprovoked random attack on astranger with a weapon.

I accept that range of sentence would be applicable on the facts before me. [55] The Crown emphasized the cases cited in Kravchenko. In R. v. Khan, 1991 CarswellOnt 900 (CA), leave to appeal to SCC

refused, 23021 (8 October 1992). The accused attacked a commuter with a knife resulting in cuts to her face requiring plastic surgeryand resulting in permanent scarring. There was no forensic assessment but the Court found the accused had “serious mental [health]issues”. The accused’s criminal record was dated but included crimes of violence. A sentence of 10 years was reduced to 8 years by theCourt of Appeal. (see Kravchenko at para. 57). [56] In R. v.

Cummings, 2015 ONSC 3162, (see Kravchenko, at para. 61), the 22-year-old accused was convicted after trial of anumber of offences related to his randomly swinging a knife, cutting the neck of a subway rider. The victim was treated and released thesame day from the hospital. The accused was said to have a disrupted life and had been diagnosed with schizophrenia. The accused hada “serious and related criminal record”.

A sentence of four years was imposed. [57] While these cases are instructive, I note none of them involve an Indigenous offender, which calls for sentencing judges toconduct a further layer of analysis in crafting an appropriate sentence. [58] The Crown emphasized aggravated assault is a serious offence, punishable by up to 14 years imprisonment (see

section 268 ofthe Criminal Code). The Crown pointed out to assess moral culpability, the Court should look at: 1) The normative character of the offence – she pointed to the transcripts and Mr. Franklin’s criminal record as demonstrating that wehave seen this type of violent offending before; the Crown pointed out the admonitions from Judges during previous sentencings that Mr.Franklin needed to maintain sobriety, seek treatment and take his medication. 2) Intentional risk-taking – The Crown filed the piece of hollow, aluminum walking cane used by the accused in committing theassault on Mr.

Searle, saying it was a high risk-taking behaviour to take a medical cane to strike a person over the head, continuing untilthe cane broke or came apart; 3) Consequential harm – The Crown pointed out the unprovoked violence which we have seen before from Mr. Franklin. The Crownpointed to the photos of the injuries (filed as Exhibit 4) and the medical report of Mr. Searle’s injuries. [59] The Crown pointed to the high-level offence and what she argued was a high moral culpability. She suggested the safety of thepublic needed to be prioritized, especially since Mr.

Franklin’s substance abuse continues to go untreated. The Crown said they hadconsidered and included Mr. Franklin’s background, including his Gladue factors, in recommending a sentence at the bottom end of therange. [60] I do have to consider the nature of the violence and the accused’s state of mind in assessing moral culpability. Withoutminimizing the seriousness of the offence, the attack was short-lived and there is no evidence it was planned or deliberate. I conclude itwas impulsive, similar to the assaults on his criminal record against the manager of the legion and the nurse.

We do not know what Mr.Franklin was thinking because he cannot remember. [61] I accept the position put forward by the Crown is a reasonable one and well-supported by the circumstances of the offence, thetranscripts and criminal record filed before me. [62] The Supreme Court of Canada and the Court of Appeal have frequently said that sentencing ranges are not strait jackets forjudges. For example, in R. v.

J.E.D., 2018 MBCA 123 at para 51: The law does not require a sentencing judge to find “exceptional circumstances” to justify imposing a sentence that departs downwardfrom a judicially created starting point or sentencing range (see R. v. Burnett, 2017 MBCA 122 at para. 25). It is proportionality that isthe sine qua non of a just sanction (see R. v. Ipeelee, 2012 SCC 13 at para.37). As well, as I indicated earlier, an error in assessing theappropriate range of sentence is not a reviewable error. It merely adds to the assessment as to whether the sentence is demonstrablyunfit.

Ranges of sentences are tools only, designed to minimize the disparity of sentences between similar offenders committing aparticular offence in like circumstances (see Lacasse at paras 2, 57; and Burnett at para 9). See also Kravchenko, at paragraph 36. [63] I have concluded it is not fair to blame Mr. Franklin for failing to seek treatment when there has not been a treatment programthat would accept him or an available treatment program which would begin to address someone with his complex needs.

The reportsand evidence before me establish he has repeatedly asked for help for his substance abuse and mental health concerns. I hope that Oshki-Giizhig and other support agencies are able to create an Indigenous-based, structured treatment program that will be in place and open toMr. Franklin when he is released from this sentence. The availability of such a resource would begin to offer real and effectivealternatives to incarceration for many Indigenous offenders like Mr. Franklin.

Something that the Supreme Court of Canada has directedsentencing judges to consider in Gladue ( (SCC), [1999] 1 S.C.R. 688) and Ipeelee. [64] I accept the Crown’s position that at some point, the Court needs to emphasize separation of a dangerous offender fromsociety. However, even if I were to impose the four year sentence recommended by the Crown, Mr. Franklin would be released into thecommunity in need of a lot of supports. I am not convinced the lengthier sentence would protect society any better once he was released,other than the additional protection offered by the lengthier period of incarceration.

It must also be remembered Mr. Franklin has ahistory of violence within Correctional facilities, so incarceration does not necessarily offer protection to other inmates and staff persons. Again, emphasizing the need for a specialized treatment program as is being proposed and developed by Oshki-Giizhig to begin toaddress the childhood trauma suffered by Mr. Franklin which motivates his substance abuse. Conclusion [65] Overriding all of the sentencing principles is the requirement that the sentence imposed be proportionate to the offence and theoffender. Mr. Franklin is still a young man.

His community caseworkers, Mr. Akili and Mr. Granger, have testified he continues to

maintain regular contact with them and is engaged in the supports they can offer. They continue to work to build a program that will help Mr. Franklin and other offenders like him. It is my sincere hope for Mr. Franklin such a structured, Indigenous-based therapeutic program will be available to him when he is released. The sentence I will impose is one which still recognizes there is room and hope for rehabilitation – an opportunity to control his risky, largely substance-induced violence (see R. v. Friesen , 2016 MBCA 50 at para 38 ). Mr.

Franklin should have the opportunity to demonstrate to himself and society the strength of his true character, after treatment for his substance abuse, trauma and mental health issues. [ 66 ] The sentence I impose is effectively equivalent to a three-year sentence followed by two years of probation. Mr. Franklin has 220 days pre-sentence custody, I give him credit for that time at 1.5 to 1, meaning he has served 330 days of his sentence. I am imposing 2 years less a day going forward from today. In my view, a three-year sentence does reflect the serious violence perpetrated by Mr.

Franklin, addressing general deterrence and society’s condemnation of violent offending, but balances that with Mr. Franklin’s deprived background, cognitive limitations and mental health issues. I note this period of incarceration will be the lengthiest term he has received to date. A sentence of two years less a day will allow him to continue to work with PASS and Oshki-Giizhig, people with whom he has already established a therapeutic relationship. Mr. Franklin has very few positive supports in the community.

His fractured, disrupted upbringing means that these connections are important to offer him the hope of maintaining more stability. Mr. Franklin’s long-term sobriety and stability in the community is what will provide long-term public safety. [ 67 ] The ability to attach a probation order to his sentence will ensure he has the therapeutic supports to aid his rehabilitation after the period of incarceration has been served.

The conditions of the probation order will be as follows: 1) Keep the peace and be of good behaviour; 2) Appear before the Court when required to do so by the Court; 3) Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4) Report to a probation officer within two working days of your release from custody and thereafter report when and in the manner directed by your probation officer; 5) Attend, participate in and complete any counselling/treatment program as directed by Probation Services including but not limited to addiction treatment; 6) Abstain absolutely from the consumption of and/or possession of alcohol, drugs, and medication not prescribed to you by a physician; 7) To have no contact, directly or indirectly with Clark Searle. [ 68 ] I also impose the ancillary orders of a

section 109 lifetime firearms and weapons prohibition and a mandatory DNA order pursuant to

section 487.05(1). [ 69 ] The victim fine surcharge is waived because Mr. Franklin is impecunious and does not have the ability to pay. “Original signed by:” A. Krahn, A.C.J.