R. v. Viscount Date:, 2014 BCPC 83

Citation: R. v. Viscount Date: 20140422 2014 BCPC 0083 File No: 227352-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUSTIN DALE VISCOUNT EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. WINGHAM Counsel for the Crown: E. Poll Counsel for the Defendant: R. Muldoon

Place of Hearing: Vancouver , B.C. Date of Hearing: April 22, 2014 Date of Judgment: April 22, 2014 [ 1 ] THE COURT: The accused, Mr. Viscount, pled guilty to Counts 1 through 8 on Information Number 227352-1. The pleas came partway through a trial. The offences to which he pled guilty all occurred on August 9th, 2012.

They are robbery of Evan Brady, robbery of Mi Sun Moon, using an imitation firearm while committing the offence of robbery, assault causing bodily harm of Evan Brady, unlawful confinement of Evan Brady, unlawful confinement of Mi Sun Moon, break and enter and commit an indictable offence, and having his face masked with intent to commit an indictable offence. [ 2 ] Evan Brady, the complainant in Counts 1, 4, and 5, had known the accused for a number of years. At the time of the offences, Mr. Brady was in the business of selling cocaine.

On August 9th, 2012, the accused contacted him and ordered an ounce of cocaine and asked Brady to deliver it to the accused's residence. Brady arrived at the accused's residence and met him in the underground parkade. The accused told Brady that he had some guns and invited him up to his apartment to see them. [ 3 ] When they got to the apartment, Brady noticed a person he described as a big Native guy and then he was hit by someone in the head with a hammer and was knocked unconscious. When he came to, he was being zap-strapped. He saw someone with a gun and he was being hit.

The accused was yelling, "Where's the money? Where's the dope?" Brady told them he would give them the dope if they stopped hitting him. [ 4 ] There were three people there. The accused had a hammer and was hitting Brady around the face with it. Brady was also hit in the face with the butt of a gun. The accused told Brady that they would let him live if he gave them the drugs and the money. Brady's ankles were zap-strapped together and his hands handcuffed using zap straps, as I understand it, behind his back.

He gave the accused the address and the keys to the residence where he and his girlfriend, the complainant in Counts 2, 3, 6, 7, and 8, lived. He also gave them the keys to his "office" where he kept the drugs and directions on how to get there. [ 5 ] The accused and the large Native fellow left telling Brady that they better find money or the accused's girlfriend was going to get beaten. The third person, described by Brady as a white guy, stayed behind with Brady. Brady identified the white guy as the one with the gun. [ 6 ] When the accused and the Native male came back, they had money and drugs.

They also took Brady's BlackBerry and $500 to $600 which he had on his person. The accused told Brady that he better keep his mouth shut and not talk to anyone or to the police about what had happened. Brady said that the only reason police became involved is because they had the block around his residence blocked off. The police told him that Ms. Moon was safe. [ 7 ] Brady was taken to hospital. His face and head were swollen. His ear was bleeding from the inside. He was bruised inside his lip and he had a goose bump on the back of his head.

He testified that later he discovered the accused and the others had taken one kilo plus six to seven ounces of cocaine and 200 tabs of ecstasy from his office which he said had a value of approximately $70,000. I will just note that that is disputed by the accused. Mr. Brady has since quit the business of selling drugs. [ 8 ] With respect to the offences involving Ms. Moon, the Crown says that Ms. Moon was at home alone when the accused and the other male entered the apartment. One of the men put a gun to her head and told her to lie down. She did so and she was tied up.

They took money from her and some jewellery. The men told her a number of times that they were not going to hurt her, but before they left, they told her not to call the police or they would kill her. After they left, Ms. Moon slipped out of her ties and phoned Brady's sister who in turn called the police. [ 9 ] After Mr. Viscount was arrested, he gave a statement to the police in which he acknowledged hitting Brady with a hammer and that Brady had been hit in the head with a gun. He admitted getting the key to the residence that Ms. Moon was in and tying her up with zap straps.

He also admitted having his face masked and pointing a gun at her. He told police they got $3,300 and some Percocet from the apartment. He denied that he knew Ms. Moon would be at the apartment. He told police that Brady had said that she was at work. [ 10 ] Both a Pre-Sentence Report and a Gladue report were prepared for this sentencing hearing. I have reviewed both of those reports and the following information comes from those reports. [ 11 ] Mr. Viscount is 27 years old. He was born in Vancouver on August 21st, 1986.

His mother, Faye Viscount [phonetic], was born in Manitoba and is Aboriginal from the Ojibwe Nation. Mr. Viscount's father is non-Aboriginal. Despite not having any knowledge of his mother's Aboriginal history or the Ojibwe Nation, the Pre-Sentence Report indicates that the accused is interested in Aboriginal programs in the community and in custody. [ 12 ] The accused had a difficult upbringing. He was in foster care from September 1997 to 1998 after being removed from his mother's care due to neglect, inappropriate discipline, and addiction issues involving his mother.

He started using marihuana at age 12 and became dependent on cocaine, alcohol, and crack cocaine as well as misusing Percocet and OxyContin. He says he has abstained from drugs since being incarcerated on these charges on August 12, 2012. He says he plans to continue to remain free from drugs. [ 13 ] Mr. Viscount has an extensive record both as a youth beginning in 2000 and as an adult. He has convictions as a youth including three assaults, five breaches, seven thefts, one mischief, and in 2004, a manslaughter conviction.

He was sentenced to 18 months in jail and three years' probation on the manslaughter. [ 14 ] He has 13 convictions, not counting these eight, as an adult. They include possession for the purpose of trafficking times two, trafficking in a scheduled substance, possession of scheduled substance times two, obstruct a police officer, assault, assault causing

bodily harm, three breaches, and fraud. [ 15 ] He has spent various lengths of time in jail as an adult. His longest sentence as an adult was 11 months plus 18 months' probation in 2007 on a fraud conviction. He has participated and completed programs including the violence prevention program and substance abuse management program. The Pre-Sentence Report on page 8 quotes from a 2004 psychiatric report from Dr. Paul Janke as follows [as read in]: It has been my experience that his is not an uncommon pattern of behaviour. Individuals such as Mr.

Viscount in a highly structured environment where there are relatively immediate consequences for inappropriate behaviour and relatively immediate reward for appropriate behaviour can be compliant and function well.

Unfortunately, it has also been my experience that these individuals show very little ability to transfer that behaviour to the more chaotic environment outside of closed custody and of a very strong tendency to revert back to previous patterns of dysfunctional behaviour. [ 16 ] Since being incarcerated on these charges on August 17th, 2012, the accused has been remanded at North Fraser Pretrial Centre.

Despite presenting as polite to institutional staff, he has been subject to disciplinary action as a result of a physical altercation, being in another inmate's cell without permission, taking food from other inmates, and being implicated in threats of violence against other inmates. [ 17 ] The Pre-Sentence Report indicates that the accused completed his grade 12 while he was in custody at the youth detention centre. He was described by psychologists/psychiatrists he has seen as being of average intelligence. [ 18 ] A full Gladue report was prepared for this sentencing hearing.

As stated, the accused's mother is from the Ojibwe Nation in Manitoba. She and the accused's father separated when the accused was four years old and his mother moved to the Downtown Eastside of Vancouver and began abusing substances. The accused and his brother lived with her for a year in an apartment with a man who supplied the accused's mother with drugs. The accused says that he and his brother were sexually molested by that man during that time. [ 19 ] The accused and his brother were taken into care by the Ministry and lived in foster care until they went into the care of their father in 1998.

The accused's mother was only present in the accused's life intermittently from then on. She had AIDS and eventually suffered a stroke. In 2010, she died from pneumonia. [ 20 ] The accused has no knowledge of his Aboriginal background or his maternal family history. The Gladue report indicates that the accused is, in fact, of Métis descent. It also reports that the accused's mother's family left a reserve in Saskatchewan because she was sexually abused by her maternal grandfather. After that, the family had no contact with the Aboriginal community.

The accused's maternal aunt told the author of the Gladue report that, "Like my mom, we all just turned to booze and drugs to try and forget what happened to us." [ 21 ] At page 12 of the Gladue report, the author states [as read in]: Dustin's background includes the following factors. Dustin is a 27-year-old Métis man who previous to the preparation of this report identified as non-Status Aboriginal without a defined community.

Dustin expressed a willingness to address the underlying factors that have contributed to the matters before the court and has completed a substance abuse relapse prevention program while incarcerated in 2014. He further expressed an interest in improving his problem solving and educational/vocational skills through participation in the Corrections Branch ESS Program and by attending an Aboriginal residential drug and alcohol treatment program. He is an Aboriginal offender with a youth and adult criminal record that began at age 14 and continues to present date.

A number of adverse factors that affect Aboriginals in general are present in Dustin's life including early introduction to and a subsequent chronic personal history of substance abuse, extensive multi-generational family history of substance abuse, multi-generational familial fragmentation, dislocation, and breakdown going back to his grandparents and continuing to date with Dustin's mother and extended maternal family. Matthew, his brother, mother, and her siblings have all reported an involvement with the foster care system.

Dislocation from the Aboriginal community and traditional family supports has resulted in a loss of cultural identity, values, culture, and ancestral knowledge which has impacted Dustin, his mother, and extended family. Dustin's early home environment age four to six was defined by his mother's substance abuse, abandonment, and involvement in criminal activities. As related by Dustin, this included prostitution and trafficking. Loss of family members (mother) through substance abuse. [ 22 ] As noted, Mr. Brady suffered physical injuries at the hands of the accused and the others involved.

He did not supply a victim impact statement. The Pre-Sentence Report states that Ms. Moon is fearful for her safety and cannot afford counselling. [ 23 ] The Crown says that an appropriate sentence in this case is in the 10 to 12-year range given the seriousness of the offences and the accused's criminal record. Counsel for the accused or former counsel for the accused submitted that, having regard to the totality principle, the appropriate sentence in this case is four to five-and-a-half years.

The accused also seeks credit against that sentence at the rate of one-and-a-half to one for time spent in custody awaiting sentencing. The accused has been in custody, as I have indicated, since August 2012. [ 24 ] Sections 718 through 718.2 of the Criminal Code set out the principles of sentencing.

Section 718 provides that: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) ... denounce unlawful conduct; (b) ... deter the offender and other persons from committing offences;

(c) ... separate offenders from society, where necessary;(d) ... assist in rehabilitating offenders;(e) ... provide reparations for harm done to victims or to the community; and(f) ... promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [25] The sentence must be proportionate to the gravity of the offence, s. 718.1. I must consider any aggravating and mitigatingcircumstances, s. 718.2(a). A sentence should be similar to sentences imposed on similar offenders for similar offences in similarcircumstances, often known as the parity principle.

When consecutive sentences are imposed, they should not be unduly long or harsh,the totality principle. All available sanctions other than imprisonment should be considered for Aboriginal offenders. [26] In support of the Crown's position, the Crown relies on a number of authorities: R. v. Chudley, 2012 BCPC 30; R. v. Cooke,2013 BCCA 536; R. v. D.A.W., 2002 BCCA 336; R. v. Gladue, (SCC), 1999 1 S.C.R. 688; R. v. Harry, 2013 MBCA108; R. v. Ipeelee, 2012 SCC 13; R. v. Lebrun, 2011 BCCA 42; R. v. Leggo, 2003 BCCA 392; R. v.

Rao, 2012 BCSC 929; and R. v.Vickers, 2007 BCCA 554. [27] Counsel for the accused referred to and relies on R. v. Parinas, (B.C.C.A.); R. v. Dukeshire, 1999 BCCA 484;R. v. Kelly, 2002 BCCA 1990; R. v. Dang, 2002 BCCA 304; R. v. Bernier, 2003 BCCA 134; R. v. Monteiro and Ford, 2005 BCSC 1201;R. v. Brossault, 2009 BCSC 464; R. v. Lebrun, is the same case the Crown relies on, 2011 BCCA 42; R. v. MacDonald, 2011 BCPC 453;R. v. Stanton, 2011 BCCA 217; R. v. Sharkey, 2011 BCSC 1541; R. v. Sidney, 2008 YKTC 40; and R. v.

Surge, 2010 YKTC 123. [28] It is not my intention to refer to all of these cases, although I have reviewed those cases. In Rao, the accused Rao was convictedof break and enter a dwelling house and commit sexual assault, unlawful confinement, sexual assault as a party, and robbery. Theoffences arose out of a home invasion and involved the accused Rao striking and choking a victim and putting his penis in her mouth.

Rao also assisted a co-accused to sexually assault another female in the residence and attempted to put his penis in her mouth. [29] Rao, who did not have a criminal record, received a 12-year sentence which, after receiving credit for six years, resulted in asentence of an additional six years.

The court referred to the circumstances as unfathomable and determined that while rehabilitationmust be kept in mind, denunciation and deterrence were the paramount sentencing considerations in that case. [30] In D.A.W., the Court of Appeal upheld a sentence of 10 years for an accused convicted of break and enter and robbery and threeyears concurrent for possession of a weapon. In that case, the Court of Appeal referred to the case as a home invasion case. The accusedand a co-accused broke into an elderly couple's home and demanded money. The accused brandished a knife.

The co-accused got into ascuffle with and sexually assaulted the female. The accused was 24 years old and had a criminal record. While his co-accused wasassaulting the female, the accused held a knife to the cheek of her husband to prevent him from assisting her. [31] At paragraph 32, the court commented on the appropriate range of sentence.

Counsel for the Crown respondent in this case submitted that if earlier cases in this Court had suggested a range of seven to ten years asbeing appropriate for this type of offence, then, in view of the increasing incidence of this class of offence and, the associated continuingviolence to householders, some upward revision might be necessary. In my opinion, this submission of Crown counsel has merit. Whilesentences are but one tool, and often a rather blunt one at that, in dealing with persistent societal problems, courts must, by the sentencesthey impose, endeavour to curb violent behaviour.

Violent lawbreaking is a particularly serious threat to an ordered society. Theinstances of violent home invasions in this province are all too frequent. It must be made clear that those who engage in such activitywill, upon conviction, face significant penalties. It seems to me that a sentence range of 8 to 12 years should be considered anappropriate range for sentences in this class of case. Of course, here, we are speaking of planned home invasions, not cases of breakingand entering where violence is not contemplated.

That kind of case is less serious, although there is always the regrettable danger in suchcases that matters may go awry and unplanned violence may occur. As I noted earlier, Parliament has classed housebreaking as a veryserious offence in any circumstances. [33] Although the above noted range can furnish a general guide, trial judges should not be unduly fettered in choosing an appropriatesentence, having regard to the widely varying factual circumstances of offences and offenders. Particularly egregious circumstancessuch as those present in the case of Jones may attract higher sentences.

Correspondingly, a lower sentence may be thought appropriatefor a relatively young offender who is perhaps led into a situation he or she did not fully appreciate might arise. What must be dealt withseverely are the genus of break-ins and robberies that involve the violent invasion of residential premises that are occupied. [32] In R. v. Leggo, the accused and a co-accused broke into the complainant's residence armed with a bat and an imitation handgun. They kicked in the door, tied up the victim, and stole money, marihuana, and personal items. The accused was 32 years old and had alengthy criminal record.

He received a total sentence of nine years and 10 months. [33] Another home invasion case was Vickers. In that case, the accused and two others pushed the complainant into his home anddirected the family to get on the floor. The complainant was shot in the leg and was hit with a pipe wrench. The accused was 24 yearsold with an extensive criminal record which included crimes of violence, property offences, and drug offences. The Court of Appealupheld a 10-year sentence.

At paragraphs 12, 13, the Court of Appeal stated: This Court has repeatedly stated that deterrence and denunciation are the primary factors in sentencing for violent crimes, particularlywhen these crimes violate the safety and security of a person’s home. As Madam Justice Saunders recently [said] in R. v. Meigs, 2007BCCA 394 at para. 25, “it is a grave offence to enter another person’s home without permission, and graver to enter the home andviolate the occupant. The courts must and do impose stern sanctions for such crimes.”

[13] While rehabilitation cannot be overlooked, it is of secondary importance in dealing with [this kind of case] ... This is particularlyso when there is no indication that the offender is a good candidate for rehabilitation. Indeed, the indicators with respect to Mr. Vickerspoint in the opposite direction, given his criminal record and the fact that he engaged in serious criminal activity within hours of beingreleased from jail. [34] The Parinas case was referred to by the B.C. Court of Appeal in D.A.W. In Parinas, a home invasion case, the accused'ssentence was increased to four-and-a-half years.

He was 20 years old and the court considered rehabilitation to be an important factor. [35] In Dukeshire, the Court of Appeal increased the sentences of the two accused, Morrison and Dukeshire, to four years and fiveyears, respectively. The convictions were for break and enter with intent, unlawful confinement, possession of a weapon, robbery, andhaving their faces masked. Dukeshire had a record for robbery, mischief, and escape lawful custody.

Madam Justice Huddart referredto the range set out in Parinas as being five to eight years for this type of offence, i.e., home invasions. [36] In Kelly, the 22-year-old Aboriginal offender received a sentence of four years. He was 20 when the offences, break and enter,sexual assault, and unlawful confinement, occurred. He had not been in trouble for four years when the offences occurred so he had noadult criminal record. The B.C.

Court of Appeal found at paragraph 9 in that case that rehabilitation was of particular significance andthat a shorter sentence would achieve the principles of sentencing. [37] In Dang, a 2002 case, the 19-year-old accused's sentence was increased to just under four years on appeal. The accused andanother man entered a house with their faces masked and armed with guns. They tied up the occupants. The accused had a youth recordwhich included aggravated assault and three break and enters.

I note that at paragraph 20, Madam Justice Levine referred to a range offive to eight years established by the court for offences of that type. [38] In Bernier, a 2003 decision of the B.C. Court of Appeal sitting with a five-member panel, considered the range of sentence ofhome invasion cases. With respect to the D.A.W. and Dang case, the court stated at paragraphs 80 and 81: Although ten years was outside the suggested range of sentences identified in N.P.D., the circumstances of the offences in D.A.W. werefar more egregious than those in N.P.D., or the cases referred to therein.

In my view, D.A.W. should not be read as requiring a new rangeof sentence for "home invasions" at large, without regard to the individual circumstances of the offences or the offender. Such a readingwould not be compatible with the principles set forth in the Supreme Court of Canada authorities to which I have referred. [81] As noted by my colleagues, the difficulty with a discussion of range of sentences with respect to home invasions is that there isno single crime known as "home invasion".

Rather, that term is loosely used as a shorthand expression for a combination of offencesinvolving a breaking and entering with intent to commit theft or robbery, with knowledge or recklessness as to whether the dwelling isoccupied at the time, and frequently involving an assault on one or more occupants. [82] Because the combination of crimes charged in these cases will vary to some extent, it is difficult to determine a relevant range ofsentence.

For this reason, the Court should exercise more caution than usual in attempting to suggest general ranges of sentence forhome invasions. [39] I note the words of Madam Justice Newbury at paragraph 106 in the Bernier case as to the usefulness of ranges in sentence: As mentioned earlier, I agree with the suggestion made by Madam Justice Southin that since Parliament has now codified the principlesof sentencing, it would be better for courts to focus upon those principles and how they apply in particular cases, than on "ranges".

Onthe other hand, I acknowledge that "ranges" are a convenient shorthand for counsel to use in making submissions on sentencing and thatthe Supreme Court of Canada has given its approval to this approach in cases such as R. v. M.(C.A.) (SCC), [1996] 1S.C.R. 500. But the usefulness of ranges will always be limited by the countervailing consideration that in Canada, each case must stillbe assessed on its own facts and that [is] ... also noted in M.(C.A.), ... [40] In Lebrun, 2011, the B.C.

Court of Appeal upheld a global sentence of six years to a 43-year-old accused who pled guilty tocharges of forcible confinement and illegal use of a firearm while committing an unlawful confinement. The offences occurred as aresult of a drug dispute. Two complainants were duct-taped, locked in a bathroom, and threatened with a gun. The male complainantwas stomped on the neck by the accused, had his earrings torn out of his ear, and was hit with the butt of a shotgun. [41] The accused had a dated record for less serious offences and enjoyed positive and strong support from his family and friends.

The Court of Appeal concluded that while not a home invasion, the event resembled home invasion scenarios and that the sentence of sixyears was not unfit or inconsistent with the range of sentence and commented that a considerably higher sentence would not have beeninconsistent with the authorities. [42] I am satisfied that the authorities establish that the usual range of sentence imposed for offences such as those to which Mr.Viscount has pled guilty is from five to eight years with exceptions existing outside that range depending on the circumstances of theoffence and the circumstances of the accused including his age, background, and criminal record. [43] In this case, there were two instances in which the accused's participation in the unlawful confinement of two differentindividuals occurred.

Both incidents were serious and fall into the category of the cases referred to by counsel. [44] While the offences involving Mr. Brady were not technically a home invasion, the violence perpetrated against him wasserious. He was confined, threatened, and assaulted with weapons. The accused lured Mr. Brady into his apartment. He and others

assaulted Mr. Brady and bound him. [ 45 ] Mr. Brady was knocked unconscious by a hammer blow to the head. He was struck repeatedly by the accused with a hammer and hit by another person with the butt of a gun. Mr. Brady suffered significant injuries and was held captive while Mr. Viscount and another person went to Mr. Brady and Ms. Moon's residence and, according to Mr. Brady, to another apartment referred to as Mr. Brady's office. It is fortunate that Mr. Brady's injuries were not more serious. [ 46 ] The circumstances of the offences involving Ms.

Moon are serious, but not as egregious as many of the cases referred to by the Crown. There was no sexual assault and no other violence. Ms. Moon was told she would not be harmed at least until she was told not to call the police. On the other hand, she was bound and had a gun pointed at her by the accused and was no doubt terrified. [ 47 ] Although given Mr. Viscount's age, rehabilitation remains a valid objective in sentencing him. Priority must be given to the principles of denunciation and deterrence given the nature of these offences, the violence inflicted on Mr.

Brady, and the accused's lengthy and serious record which involves two assault convictions and a manslaughter conviction as a youth and an assault and assault causing bodily harm conviction as an adult. [ 48 ] Mitigating circumstances in this case are the accused's guilty plea and his difficult upbringing. He has also expressed remorse for his actions. Aggravating circumstances include the accused's criminal record, the use of a firearm, and the fact he had his face masked during the offences involving Ms. Moon. [ 49 ] The need for Mr. Viscount's rehabilitation can be addressed in custody in the federal system.

There are substance abuse programs available to him. The Pre-Sentence Report and the Gladue report refer to those resources. The Pre-Sentence Report at page 12 provides [as read in]: An Aboriginal person sentenced to a federal institution will be managed within the context of the Aboriginal continuum and care model and they can access various Aboriginal programs and services including elders, traditional circles, smudging kits, Aboriginal liaison officers, Aboriginal-specific units, sweat lodge ceremonies, pow wows, and ceremonies.

There are also Aboriginal maintenance programs both within the institutions and the community setting. A minimum security Aboriginal healing village can be cascaded to and there is an Aboriginal-specific camp in the Prince George parole area upon day, full parole, or work release.

Aboriginal community development officers assist Aboriginal persons with release applications to return to their home communities and/or assistance reconnecting to their home communities, and Aboriginal community liaison officers and Aboriginal program officers provide assistance and support in the parole area. [ 50 ] Page 14 of the Gladue report provides more details of the programs and institutions available for Aboriginal offenders in the federal system. As noted, s. 718.2 (

e) of the Criminal Code provides that: ... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to ... Aboriginal offenders. [ 51 ] In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court of Canada revisited and explained its previous decision in R. v. Gladue . At paragraph 73 of that decision, the court explained that systemic and background factors may bear on the culpability of the offender before the court as they may shed light on his moral blameworthiness.

At paragraph 73, the court stated: 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 [would] 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.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani ... after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.” 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. [ 52 ] At paragraph 75, the Supreme Court stated:

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 case. This has been, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.

Section 718.2 (

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.

[ 53 ] While Mr. Viscount has no knowledge of his Métis ancestry or his maternal family's history, the pattern of sexual abuse and substance abuse in his family, which is all too common as a result of the Aboriginal experience with colonialism in this country, is present in this case. His mother was sexually abused on a reserve in Manitoba causing her family to leave and abandon their Aboriginal roots.

His mother subsequently became a drug addict who contracted HIV AIDS and died of pneumonia. [ 54 ] The accused was sexually abused by one of her partners who was supplying drugs to her and spent time in foster care. He began using marihuana when he was 12 years old and was convicted of his first criminal offence, assault, when he was 14 years old. He was dependent on cocaine and alcohol at the time of these offences. [ 55 ] Given all of that, it can be said that the accused's moral culpability is somewhat diminished in this case. He lacked stability growing up. He was sexually abused.

He was in foster care. [ 56 ] Considering the need for denunciation and deterrence and rehabilitation as well as considering the aggravating and mitigating factors in this case and the accused's Aboriginal background and the impact on his young life that that had, I conclude that the appropriate sentence is as follows. [ 57 ] On Counts 1, 4, and 5, the sentence is seven years. On Counts 2, 7, and 8, the sentence is six years. On Count 3, which is the use of the imitation firearm, the sentence is one year. [ 58 ] The sentences on Counts 1, 4, and 5 and Counts 2, 6, 7, and 8 will be concurrent to each other.

While the offences against Mr. Brady and Ms. Moon were separate, there is a link between them as they occurred closely in time to each other. I am also of the view that the sentences, if served consecutively, would offend the totality principle; see R. v. Hubert [phonetic], 1980 B.C. Decisions, B.C. Court of Appeal. [ 59 ] The sentence on Count 3 which is the use of the imitation firearm is consecutive to the sentences on the remaining counts.

That results in a sentence of eight years. [ 60 ] With respect to presentence credit, I received further submissions from counsel today in light of the recent decision of the Supreme Court of Canada in R. v. Summers . The Supreme Court of Canada in three recent cases considered the issue of credit for presentence detention as provided in s. 719(3.1) of the Criminal Code . Those cases are R. v. Summers , 2014 SCC 26 ; R. v. Clarke , 2014 SCC 28 ; and R. v. Carvery , 2014 SCC 27 .

In Summers , the Supreme Court of Canada stated that the lost opportunity for early release and parole during pretrial detention can be a circumstance under s. 719(3.1) . I will come back to Summers in a moment. [ 61 ] Mr. Viscount has been in custody since August 17th, 2012. His trial commenced June 5th, 2013. He pled guilty, if my recollection is correct, on the second day of trial.

His sentencing was delayed for the purpose of obtaining a full Gladue report and extensive submissions were received from both the Crown and the defence at the sentencing hearing and sentencing was then subsequently adjourned once again to today's date. [ 62 ] The total time that the accused has been in custody to today's date from the date of his arrest is 613 days, roughly 20-and-a-half months. Mr. Muldoon, counsel for Mr. Viscount, suggests that Mr.

Viscount should receive credit for that time in custody at the rate of one-and-a-half days for each day spent in custody. [ 63 ] In paragraph 71 of the Summers decision, the Supreme Court of Canada stated: The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.

Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. [ 64 ] Paragraph 25 of the decision states: In practice, the “vast majority of those serving reformatory sentences are released on ‘remission’ ... at approximately the two-thirds point in their sentence”, and only two to three percent of federal prisoners are not released either by way of parole or “statutory release” ... [ 65 ] And there is a citation from a text, C.C. Ruby, Chan, and Hasan, Sentencing , 8th Edition, 2012.

The Supreme Court of Canada also stated that the practice of using the former s. 719(3) of the Criminal Code to award enhanced credit for both the quantitative and qualitative consequences of presentence detention was deeply entrenched in our sentencing system.

It went on to state that is: ... inconceivable that Parliament intended to overturn a principled and long-standing sentencing practice, without using explicit language, by instead relying on inferences that could possibly be drawn from the order of certain provisions in the Criminal Code . [57] Rather, it seems more likely that Parliament intended to do what it did explicitly. The amendments clearly impose a cap on the rate at which credit can be awarded, at 1.5:1. ...

Having made its intention so clear on that point, Parliament gave no indication it intended to alter the reasons for which enhanced credit can be granted. [58] ... neither the language of the provision nor the external evidence demonstrates a clear intention to abolish one of the principled rationales for enhanced credit.

[ 66 ] The Crown points to the Gladue report which refers to Mr. Viscount's difficulties or problems that he has presented in custody. Those are set out at page 11 under the heading, "Previous Interventions," where the report refers to the Pre-Sentence Report as follows [as read in]: As noted within Dustin's PSR, his behaviour was subject to disciplinary action on March 15, 2013. He was administratively classified to the enhanced supervision program unit.

While Dustin has remained in the ESP unit, he completed his Certificate of Addictions Services Relapse Prevention. [ 67 ] The Crown is saying there is no surety that Mr. Viscount is going to gain an early release or remission for any of the time that he spent -- or remission of his sentence, rather. As I read paragraph 71, which I have already referred to, and paragraph 75, which says: For many offenders, the loss of eligibility for early release and parole will justify credit at a rate of 1.5: 1.

However, as Beveridge J.A. concluded, it is not an “automatic or a foregone conclusion that a judge must grant ... at more than 1:1 based on loss of remission or parole”.

If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity. [ 68 ] Then, as I have already referred to paragraph 25, the Supreme Court of Canada refers to: ... only two to three percent of federal prisoners are not released either by way of parole or “statutory release" ... [ 69 ] There is an onus, as I understand the Summers decision, on defence to show that enhanced credit for presentence custody should be granted. I am satisfied, based on what I have heard, that Mr.

Viscount is more likely than not going to be entitled to early remission or parole. [ 70 ] I am going to grant him one-and-a-half credit for each day that he has spent in custody. [ 71 ] What that means, Mr. Viscount, is that your sentence in total is an eight-year sentence. You are going to receive credit for -- or 96 months, if you put it in terms of months. You are going to receive credit for one-and-a-half for each day you have spent in custody which, by my calculation, will reduce your sentence to five years and five months. You will get credit for 31 months. [ 72 ] MR.

POLL: Two years, nine months, 15 days at one-and-a-half. [ 73 ] THE COURT: Right, all right. [ 74 ] MR. POLL: Yes. [ 75 ] THE COURT: Sorry, say that again? [ 76 ] MR. POLL: Two years, nine months, 15 days would be the credit. So it is -- Your Honour indicated 613 days -- [ 77 ] THE COURT: That was my calculation. [ 78 ] MR. POLL: Add half of that again to get one-and-a-half, gets to 920 -- [ 79 ] THE COURT: Right. [ 80 ] MR. POLL: -- and then I calculated that that amounts to two years, nine months, 15 days. [ 81 ] THE COURT: Mr. Muldoon, do you argue with the math? [ 82 ] MR.

MULDOON: No, I do not argue with the math, Your Honour. [ 83 ] THE COURT: All right. There will also be a DNA order as primary designated. [ 84 ] It will attach to -- well -- do you need a count for that to attach to, Madam Registrar, his DNA order? [ 85 ] MR. MULDOON: Your Honour, just Mr. Viscount has advised me that his DNA has already been collected. I do not know if it is necessary to do that again. [ 86 ] MR. POLL: I think it is. [ 87 ] THE COURT: What do you say, Mr. Poll? [ 88 ] MR. POLL: Well, I think it should be on this offence. It is mandatory, in any event.

I do not think he could fight it. [ 89 ] THE COURT: It is. I recall reading some law that says that if it has already been made, it does not need to be made again, but I am going to make it. I am going to make the order. It is primary designated. [ 90 ] MR. POLL: Thank you, Your Honour.

[ 91 ] THE COURT: It will attach to Count 1, the robbery of Evan Brady. In terms of the -- I am sorry, Mr. Poll, you are -- you look like -- [ 92 ] MR. POLL: Well, you are not finished yet, so I -- [ 93 ] THE COURT: No, what did you want to say about that? [ 94 ] MR. POLL: Nothing about the DNA order. [ 95 ] THE COURT: Okay. In terms of the firearms prohibition? [ 96 ] MR. POLL: That is what I was -- [ 97 ] THE COURT: It is s. 109. [ 98 ] MR. POLL: Yes. [ 99 ] THE COURT: Is it life or 10 years? [DISCUSSION RE FIREARM PROHIBITION DURATION] [ 100 ] MR. MULDOON: If it helps -- [ 101 ] THE COURT: Right. [ 102 ] MR.

MULDOON: -- make the issue redundant, Your Honour, Mr. Viscount has already -- has advised me that he is already subject to a lifetime firearm prohibition in relation to the manslaughter conviction. [ 103 ] THE COURT: All right. Well, then, there will be another lifetime prohibition under s. 109. [ 104 ] Are there any other ancillary orders? [ 105 ] MR. POLL: No, thank you. [ 106 ] THE COURT: All right. Thank you. [ 107 ] MR. MULDOON: Thank you, Your Honour. [ 108 ] MR. POLL: Thank you. [ 109 ] THE COURT: Do I have to deal with the victim fine surcharge? [ 110 ] MR.

POLL: No, but I think you have to -- you have to deal with it in -- [ 111 ] THE COURT: I am going to waive it. [ 112 ] MR. POLL: Yes. [ 113 ] THE COURT: He is going to be in custody. Yes, sir? [ 114 ] THE ACCUSED: The apology letters, will they be able to get those through Victim Services? [ 115 ] MR. MULDOON: They should. I can check with Victim Services, Your Honour. [ 116 ] THE COURT: I will leave you -- why do you not discuss that with your lawyer, sir? [ 117 ] THE ACCUSED: Okay. [ 118 ] THE COURT: Thank you, counsel. [REASONS FOR SENTENCE CONCLUDED]