R. v. Choken, 2012 MBPC 44

CITATION: R. v. Choken , 2012 MBPC 44 Date: 2012 04 26 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Rustyn Ullrich ) for the Crown ) and ) ) ) Joseph Jordan Carl Choken ) Eric Wach ) for the Accused ) ) ) ) Reasons for Decision delivered: ) April 26, 2012 M. J. SMITH P.J. INTRODUCTION [ 1 ] Joseph Jordan Carl Choken plead guilty to one count of possession of a restricted weapon with ammunition contrary to s. 95(1) (

a) of the Criminal Code as well as one count of breaching a weapons prohibition order, contrary to s. 117.01(1) , which was imposed following a youth conviction for aggravated assault. In addition, he plead guilty to possession of a firearm with a tampered serial number contrary to s. 108(1)(b). The offence date for all three offences was August 8, 2011. [ 2 ] The issue is the appropriate sentence for these offences, the first of which attracts a three-year minimum term of incarceration.

The same day that he entered his guilty pleas to these three offences, I sentenced him to a jointly recommended 18 months incarceration for trafficking in crack cocaine, for an offence dated April 9, 2011, along with 30 day concurrent sentences for a breach of an undertaking to an officer in charge (curfew) July 4, 2011; and for three breaches of recognizance July 12, 2011 (curfew); August 3, 2011 (bail supervision); August 9, 2011 (curfew). [ 3 ] The Crown seeks a sentence of seven years for the possession of a loaded 45 mm handgun, one year concurrent for the possession of a firearm with an obliterated serial number, and one year consecutive for the offence of possession while prohibited, all sentences consecutive to the 18-month sentence for the drug trafficking offence.

The defence argues for a global sentence of three and a half years consecutive to the drug trafficking offence. Choken was only 19 at the time of the offence with a minimal adult record. OVERVIEW OF CROWN ARGUMENT [ 4 ] While the Crown concedes that because of his youth, rehabilitation must be a consideration in sentencing, the Crown submits the context of the offence was so serious that only a strong denunciatory and deterrent sentence is proportionate and adequate to protect society.

The Crown says Choken chose to join a violent gang in the context of a gang war between the Rock Machine and the Hell’s Angels for the control of the drug trade on the streets of Winnipeg. Indeed Choken does not contest that at the time of the offence he was a member of the Vendetta Club, a puppet club of the Rock Machine, both of which - along with the Hell’s Angels - have been found to be criminal organizations by the Courts. The Hell’s Angels’ puppet club is the Redlined. The violent acts have included drive-by

shootings, fire bombings, and beatings – all part of the war for control over the lucrative drug trade. The Crown characterized the struggle as urban warfare on the streets of Winnipeg. [ 5 ] The Crown’s theory is that the car Choken was riding in, driven by a fellow gang member, with the loaded gun ready at Choken’s feet in the backseat, was intercepted by police moments from a retaliatory shooting of rival gang members. The car was mere yards away from the home of a Hell’s Angels associate. The address of that home was found on a napkin in the car.

The police intercepted the vehicle, they believe, just in time to avert a likely act of violence only because they had received a tip from a confidential informant and had the address under surveillance. [ 6 ] The Crown was prepared to call evidence to back up the factual context to the offence but the defence agreed that the Crown instead could present those facts by way of submission.

The defence took issue with some of the inferences the Court could or should make from the factual background. [ 7 ] As part of the background to this offence, it is acknowledged that there was a drive by shooting at the home where Choken resided several weeks earlier, on July 4, 2011. A youth whom Choken considered his little brother was shot apparently by Hell’s Angels members or associates. The only apparent reason for a shooting at that location was due to Choken’s membership in the rival gang’s puppet club.

At the time he was pending on the charge of trafficking in crack cocaine for the Rock Machine, earning about $600 a day. [ 8 ] While the Crown acknowledges that Choken cannot be sentenced for what he did not do – the hit did not occur – nor can the Crown prove attempted murder, the Crown submits that the overall circumstances nonetheless cry out for the seven year sentence urged by the Crown. [ 9 ] The Crown submits the factual scenario of the offence is at or near the worst that could be conceived.

The Crown noted the maximum penalty is ten years, suggesting that a sentence of about two-thirds of the maximum is fair. [ 10 ] The Crown argues that mitigating features present – his youth and the guilty plea – are minimal.

Indeed the Crown paints Choken as a manipulative person who chose the full package of a violent gang lifestyle complete with guns and trafficking in drugs of despair for profit. [ 11 ] The Crown acknowledged that totality must be considered, but submitted that it had already been given weight in the lenient jointly agreed sentence for the crack cocaine drug trafficking offence, negotiated between defence and the federal Crown in the shadow of the certain penitentiary term for the possession of the loaded handgun.

OVERVIEW OF DEFENCE ARGUMENT [ 12 ] The defence argues for a global sentence of three and a half years consecutive to the drug trafficking offence. Not surprisingly, the defence lays emphasis on Choken’s youth, and the principle of restraint that should guide a first penitentiary sentence. [ 13 ] The defence filed a number of reference letters that spoke in glowing terms of some of the accomplishments of young Choken, and his potential leadership skills as a role model for young Aboriginal children and youth.

After a stint in a street gang as a youth, Choken left the gang and for a time – roughly between the ages of 15 and 17 – participated in a number of programs where he urged other children and youth to stay away from the gang lifestyle. He spoke on reserves and at community events and worked with social workers, professors and others who were dedicated to assisting members of the Aboriginal community avoid the traps of gangs and violence. [ 14 ] The defence also highlighted his tragic Aboriginal family background, characterized by alcoholism, poverty and violence.

The Defence argued that the one-dimensional picture painted by the Crown was unfair – that there was a real likelihood of rehabilitation that would be crushed by the lengthy sentence being sought by the Crown.

CIRCUMSTANCES OF OFFENCE [ 15 ] The Crown outlined the circumstances of the offence and the events leading up to it in detail. [ 16 ] According to the Crown, the police received information from a confidential informant that there was a handgun at 58 Bournais, a home associated to the Rock Machine, and a planned hit of a Hell’s Angels associate at 155 Antrim, both addresses located in quiet residential neighbourhoods in Winnipeg.

The information received was that it may be a retaliatory hit for the shooting from July 4, 2011 of Choken’s “little brother.” According to the informant, the July shooting was done by or at the direction of the Hell’s Angels outlaw motorcycle club. [ 17 ] When given an opportunity to address the Court, Choken spoke about the drive-by shooting on July 4, 2011, stating: But this time, like, when my little brother got shot, I was pretty - (sic) call him my little brother because I grew up with him, right? I helped him do a lot of things.

I took him out (inaudible) stuff and we used to play basketball a lot, used to drive around, taught him how to ride his bike. It was actually pretty, pretty harsh to see that, you know, pretty hard to see that my little brother got shot because of, because of me, you know what I mean? Because I was in the Vendetta gang, right? Vendetta competes with the Hells Angels. It's because of that, know what I mean? And I take full responsibility for that, know what I mean? I'm not going to deny. So I guess - I don't know - everything went on, the war was going on. I'm not going to deny there was no war.

Of course, there was a war (inaudible) saying. [ 18 ] The information received from the police informant was that the gun would be picked up from the Bournais address by the person doing the hit. Because of the tip concerning the potential retaliatory hit, on August 8, 2011, the police set up surveillance at both 155 Antrim and 58 Bournais. The police stationed themselves so that they could conduct the surveillance, including watching vehicles coming and going that day. They had been alerted to some vehicles believed to be associated to the gangs.

[ 19 ] One of those vehicles the police noticed driving by 155 Antrim was a red Dodge Avenger belonging to Amanda Freeman, a young woman who is apparently the girlfriend of Guy Wesley Stevenson (“Stevenson”), also known by the nickname of Bullet Stevenson. He, like Choken, is a known member of the Vendetta, and admitted to this when arrested later that night. I will refer to this again as the “first pass” of the suspect vehicle by the Hell’s Angels associate’s home.

Although an exact time was not provided, it seems this first pass occurred a number of hours before the subsequent take down and arrest. [ 20 ] The police followed that vehicle after it left 155 Antrim. Eventually it arrived at 58 Bournais, where, according to the confidential informant, the handgun to be used in the hit was located. [ 21 ] The police observed the people in the red Avenger get out. One of them was Stevenson, the driver. The other is believed to be Choken. The police observed the two men meeting with another individual, David Benoit, outside 58 Bournais.

A police officer saw a bag being handed off and being brought back to Ms Freeman’s vehicle. Because of the distance, the police cannot say whether the bag was handed to Stevenson or Choken as both are of similar stature. [ 22 ] In any event, the police officers at the 58 Bournais address saw the Avenger leave 58 Bournais at 1:21 a.m. Ms Freeman was in the passenger seat, Stevenson was driving, and Choken was in the backseat. The police followed that vehicle.

It travelled in virtually a direct route back towards 155 Antrim. [ 23 ] The police at this point believed that the occupants of that vehicle had picked up the handgun at 58 Bournais and were on their way to do the retaliatory shooting at 155 Antrim, consistent with the tip they had received. [ 24 ] The police continued their surveillance at 155 Antrim. In the meantime the people that live at 155 Antrim arrived home. The police observed them milling about in front of the house.

The police concluded that there was a real and imminent danger to those at 155 Antrim, or to the police, as they learned from fellow officers by radio that the Avenger was getting closer and closer to the Antrim address, apparently en route to a second pass. [ 25 ] The police tactical assault teams then converged on the area. As the Avenger vehicle turned onto Antrim and was basically a block or perhaps only a half block away from the home at 155 Antrim, the police decided to stop that car. They did so in very dramatic fashion. Stevenson, driving the Avenger vehicle, was trying to get away.

The police rear-ended the vehicle to bring it to a stop about 30 or 40 feet from 155 Antrim. They took everybody out of the car at gunpoint. When they went through the vehicle, there on the floor in the backseat, where Choken was seated, the police located a 45-calibre handgun – loaded, ready to go, with three bullets in the clip in the gun. The Crown observed that all it would have taken is for somebody to pick it up and start firing.

It was in working condition, and is a restricted firearm under the Criminal Code . [ 26 ] When the police stopped the vehicle, not only did they find the gun in the backseat but they also found a napkin rolled up and stuffed in between the front seat and the console, with the “155 Antrim” address written on it. As well, latex gloves were located in the vehicle. [ 27 ] Also found in the vehicle were pictures of Choken in gang clothing wearing a Vendetta vest. In one he is alone and posing, wrestler style; in the other he is posing with a known Rock Machine member, Jay Strachan, giving the middle finger.

The Crown filed these pictures as evidence of Choken’s apparent pride in his gang membership. [ 28 ] When they were arrested, all three of them denied knowing about the gun. Both Choken and Stevenson readily admitted to being members of the Vendetta puppet club. But Choken denied that he wanted to retaliate. [ 29 ] Little was said about the circumstances of the offence by the defence. Choken, in a letter to the Court read by his counsel said he had the gun for his own protection. He stated: I'm making it known that the 45-calibre handgun that was seized on August 9, 2011 belonged to me.

The reason I was in possession of this was due to the fact, which is known to the police , that my home on 57 Taft Avenue was targeted and my younger brother was hit. I felt that my life was in danger and I decided to carry, to carry my own protection. I know that this was wrong of me to do and I take full responsibility for it. [ 30 ] Even if the Court were to accept that position, I agree with the Crown that to the extent a gun was needed for protection, it was only because Choken had chosen to join a gang and actively involved himself in the gang business of selling crack cocaine.

As he said, he knew there was a gang war going on. At the time of the offence he was clearly a willing participant immersed in the gang lifestyle. Moreover, he had chosen to join the Vendetta gang at a time when the Rock Machine and the Hell’s Angels were in a violent struggle for control of the drug turf. [ 31 ] Choken denied through his counsel that he had any plan to do a drive by retaliatory shooting.

Various specious explanations were put forward to the police and to the Court about how it was that the vehicle was on a route passing by 155 Antrim, or how it was that there was a napkin with that address on it in the vehicle; including a suggestion by Choken when he spoke to the Court at the end of the sentencing hearing that the napkin was planted by the police. Choken also suggested that they were headed to Stevenson’s house, but Stevenson, the driver got lost going to his house. He also denied that he knew the Hell’s Angels associate lived on Antrim.

Defence suggested the facts that there were only three bullets in the gun, and that Ms Freeman was along for the ride, made it highly improbable that there was any plan to do a hit. [ 32 ] In my view, the facts leave no room for accepting that it was by pure chance or coincidence that the vehicle Choken was in was on its second pass by 155 Antrim, the home of a known gang rival.

The Court is not bound to accept the contradictory and implausible explanations for that vehicle’s presence on that particular street, but can and must draw the logical, common sense and compelling inferences from the facts not contested by the defence, including the fact that a napkin with that address was found in the vehicle. The only logical inference is that either Stevenson or Choken, or both, knew that a rival gang member lived at 155 Antrim and Stevenson was deliberately driving toward that address.

[ 33 ] The route chosen, the second pass, and the napkin in the car overwhelmingly point to this fact, and is the only inference to be drawn unless common sense and logic are disregarded. Even if only the driver and not Choken actually knew 155 Antrim was the home of the member of the rival gang, at any moment that information could have been shared with the armed and bitter Choken. The potential for disastrous consequences was palpable. [ 34 ] Having said that, I cannot conclude to the criminal standard necessary that Choken’s purpose was indeed to engage in a drive by shooting on the night in question.

I simply find that he had chosen to arm himself with a loaded handgun – an instrument of death – and was ready to participate in an armed urban struggle with rival gang members at any time when the police intercepted the car and arrested him. As he said to the Court at the end of the sentencing hearing, he did not care much about life and death at that time. CIRCUMSTANCES OF OFFENDER [ 35 ] Choken has just turned 20; his birth date is March 16, 1992. He was only 19 at the time of the offence. [ 36 ] Choken chose not to seek the preparation of a pre-sentence report.

His counsel advised the Court that he had spent a great deal of time with his client, during which he had opened up to him about his background. Choken is Aboriginal. In the Court’s view it would have been preferable to have a pre-sentence report and Gladue report prepared by a probation officer. Such a report would have involved checking some of the facts about the offender with collaterals, and detailing considerations related to Choken and his family as Aboriginal people. [ 37 ] According to counsel, Choken’s family circumstances were tragic.

He was not given the care, support and guidance every child deserves. His father, Julius Choken, was an alcoholic who was jailed for among other reasons, domestic violence against his mother. His father also beat young Choken. [ 38 ] Choken remembers both his parents drinking on a daily basis. He recalls his mother gambling daily. He was born in Winnipeg and lived here in the Central neighbourhood with his parents until about the age of five, when the family moved to Little Black River First Nation, a community about 200 kilometres from Winnipeg. [ 39 ] They spent about two years there.

According to Choken, there was a considerable amount of alcoholism on the reserve; there was always drinking on Friday nights and there were always fights. Young Choken, by his own admission, got into a lot of fights at school in Little Black River. And again there was abuse between his mother and father, there was abuse towards him, but he told his counsel that it was “very normal and commonplace on the reserve.” He recalls lots of punches, fighting, and screaming. [ 40 ] When he was in grade three or four, his family moved back to Winnipeg.

He fought a lot in school in Winnipeg as well. [ 41 ] Although his father did work hard at labour jobs at times to try to provide for his family, Choken remembers a life of extreme poverty. He remembers a time when he was 10 or 11 that there was no heat in the house. [ 42 ] When he was about 10 years old, he would spend a lot of time on the streets of Central Winnipeg and he became friends with the local kids. A lot of the kids liked or admired him, according to him, because he was a naturally good fighter.

He took boxing for three years when he was quite young. [ 43 ] After grade six, he went to Hugh John MacDonald for grade seven, at which time his formal education ended. [ 44 ] There was often a shortage of food at home, such that as young as 12, Choken told his counsel, he began selling drugs to get food for himself and his sister, Candyce. That he learned from his father, who was also a drug trafficker. His older brother also sold drugs. Although there were times when he did not sell drugs, he frequently used this line of work – the family business – to obtain money.

Sometimes he would even feed his parents from the money he earned selling drugs. [ 45 ] When he was 15 he was convicted of an aggravated assault that occurred when he was 14. There was a fight on the streets, one of his cousins was attacked, and a group, including Choken, attacked the attacker. [ 46 ] When he was released from the Manitoba Youth Centre, after approximately 10 months in custody, he was 15 years of age. His parents accepted him back into the home. [ 47 ] At this time he left the street gangs, because, he told his counsel, they were fighting among themselves, something he did not like to see.

A community leader at the Turtle Island Community Centre referred him to Professor Joannie Halas of the University of Manitoba Faculty of Kinesiology and Recreation Management and the program she is involved with – ONE GOAL – Operation North End – Great Opportunities for Aboriginal Leadership. [ 48 ] That program gave him an opportunity to develop and to display leadership skills. He became a mentor working with the Diversity Youth Mentor Program for a number of years.

For example, he provided leadership for young children in an after school physical activity/nutrition/ education program offered at various sites – the “Rec and Read” program, including at Niji Mahkwa School, R. B. Russell, Turtle Island Community Centre and Rossbrook House.

Because of his apparent leadership skills, the University of Manitoba also engaged him to help in their initial efforts to start a “Rec and Read” program in Garden Hill First Nation. [ 49 ] Ironically, given his present circumstances, he apparently displayed a lot of insight, and was speaking on reserves and in high schools, warning children and youth about gang life. He was interviewed on a popular morning radio show on CBC.

He is proud of the successes he had while working with the University of Manitoba program. [ 50 ] One further bright light in the background of this offender is that he managed to keep himself away from drug addiction. [ 51 ] In the year 2009, he was arrested at home for an aggravated assault. He says he was wrongly arrested. He spent ten months in custody before the charges were stayed. In speaking to the Court he suggested that after he was sent back to the youth centre, he began to

question whether he was really ready to leave the gang life. [ 52 ] When he got out of the Manitoba Youth Centre on March 5 of 2010, he found that his parents had separated and his mother had simply left the City and returned to Little Black River. Despite his troubled childhood, he loves his parents very much and was very upset by this development. [ 53 ] He arranged to live at 57 Taft, the home of the person he described as his best friend, whom he had met at Pinkham Elementary School, and his family. His best friend had stayed out of trouble.

He told his counsel that his best friend's family accepted him like a son and treated him like a son. However, when Choken addressed the Court he complained that the family was charging him $600 a month rent, suggesting they were taking advantage of him. That family did not attend Court nor did they provide a letter of reference. [ 54 ] He had a job interview at the “Youth Build” program within five days of his release and was accepted in the program, beginning March 15, 2010. [ 55 ] Build is a mentorship/apprenticeship/school program for at risk youth and others.

This program, known to the Court, was an excellent opportunity for him to develop some employment skills in a supportive program. He worked with them up until February 2011, Monday to Friday from 7:00 a.m. until 3:30 p.m. He became a crew leader. When he spoke to the Court at the conclusion of the sentencing hearing, however, he was critical of Build. He felt that he was doing a lot for Build, including speaking about the program, but it was not doing that much for him. He was also speaking out about gangs. But inside he wasn’t sure he wanted to leave the gang life.

As noted, he blamed his stint in the youth centre in part for him turning back to gangs; he was also upset that his parents had separated when he got out and were not around. He said he felt that he had no one and no one cared for him. [ 56 ] While working at Build, in November 2010 he met an individual involved in the Vendetta group and decided to join that gang.

He continued at Build for about three months after that. [ 57 ] He told the Court that although he joined the gang in November 2010, he didn’t start selling drugs for them until January 2011. [ 58 ] On February 5, 2011, his close friends, Darren Joey Swampy, 19 years old, along with another friend, Lee Brady Spence, were shot in the 400 block of Ellice. Both died. [ 59 ] He said this was devastating to him and he missed two weeks of work at Build when his close friends died. He called the workplace back and according to him they would not take him back.

I note that there was no collateral information from Build provided to the Court. [ 60 ] Rather than turning him against gangs and violence, he indicated that after that he got even more involved with the Vendetta gang, selling drugs. He stated: “Like, it was like going back into, like, my old street gang. That's what it was like, and (inaudible) chilling with the brothers, all good, and that's where I felt a family again, know what I mean?

I felt it all again. [ 61 ] As noted in the overview of facts, on July 4, 2011 his “little brother” was shot in a drive by shooting because of Choken’s involvement in the Vendetta gang. This was the brother of his best friend with whose family Choken was residing at the time. His mindset at this time is troubling. He told the Court: Just - I just kind of fell away. I don't know, just - at the time I didn't care about life or death.

I mean, I thought death was, was an option, you know, just like I'll be just another memory to people, know what I mean? [ 62 ] When he gets out of jail, his goal is to be a youth mentor and resume the type of work he formerly did in connection with the University of Manitoba. He states that after his arrest he dropped his gang colours and is no longer a member of the Vendetta. [ 63 ] Counsel filed a number of letters of support related to his efforts with the University of Manitoba mentorship programs.

These letters can be described as glowing. [ 64 ] Amy Carpenter, the co-ordinator of the youth mentorship program at the University of Manitoba wrote: "I know, and hope the court will recognize, that JJ [Choken] is so much more then the charges against him. [He] is a powerful role model within our communities and he is a phenomenal human being. I personally look forward to the day when JJ will once again be working with us in the mentor programs." [ 65 ] She stated that she knew Choken had a history of gang affiliation “but I truly believed he had turned a new

chapter in his life.” The reason for her belief was how he had demonstrated, over a considerable time, a commitment to community involvement and had been a natural positive role model with a “huge heart.” [ 66 ] Sonya Schulzki, who has known Choken since 2009 through the ONE GOAL program, wrote that he had been an outstanding role model with a positive attitude: He does not hesitate to lead others through active games in the gym. Sometimes he will buddy up with a student to make them feel more comfortable and involved. He's had many positive connections at the U of M and elders within the community.

He is a hard worker. He is dedicated to making a difference in the lives of others. Between working with One Goal and a carpentry business [apparent reference to Build] he seems happy leading a positive life. In fact, as noted above, he was not happy and leading a positive life at this time; he was dissatisfied with Build and joined the Vendetta gang in November of 2010. [ 67 ] Professor Joannie Halas began her letter by saying she has tremendous respect for Choken:

"Our mentor programs are designed to invest in the talents of young people like JJ, providing them a healthy alternative to the opportunities provided through criminal youth gangs. JJ is exactly the type of youth that our society needs as its leaders; for four years, despite one period of incarceration at the youth centre (JJ was eventually released without charges), JJ has been one of our most dependable, generous and caring youth leaders." . . . "Simply stated, JJ has tremendous leadership skills; he is a friendly, personable young man with many talents and he is the first to help out when needed.

He is particularly adept at building relationships with young children and I sincerely believe that whatever his future holds, he will make positive contributions to the people around him." [ 68 ] She pledges to J.J.: "... that whatever the outcomes of his current situation [are], when he is released from jail, we will hire him ... as a mentor in our [youth] university programs. JJ has an incredible facility when working with children and youth and I will do what I can to support his re integration into the community.... [ 69 ] She concludes: "... In all my years as an educator ... without reservation ...

JJ ... ranks in the upper 95th percentile of young people I have had the opportunity to work with.

He has taught me much about life ... he is a good person and I am proud to call him my friend." [ 70 ] Tara Klimchuk met Choken through her work with the University of Manitoba ONE GOAL program, and explains she has known him for four years “during which he has demonstrated outstanding honesty, reliability and compassion.” She states they often referred to “J.J.” as their star mentor “because he really embodied the spirit and goals of the program.” [ 71 ] She stated: “JJ has a special ability to build relationships with kids who have the most severe social and behavioral issues, and as a teacher, I have yet to see anyone who is as gifted with children as JJ [is]." [ 72 ] Ms Klimchuk continued: "JJ had to overcome unimaginable circumstances to get himself away from the gang life that he was coerced into at a young and vulnerable age.

He was very honest about his hardships, and often expressed concern about the dangers and threats he and his family faced as a result of him escaping the gang. JJ refused to give in to the threats, and wanted nothing more than to make his family proud. [He] worked hard to earn 'honest money' at his construction job ..." [ 73 ] Most of his current supports appear to be the individuals who have written letters of reference, several of whom attended the sentencing hearing.

Counsel advised that his 22 year old brother, Jesse, has just finished serving a three year sentence at Stony Mountain Penitentiary for an aggravated assault. He was released on December 24, 2011. His younger sister, Candyce, is now serving a sentence for aggravated assault. His eldest brother, Adrian, left the city at 14 years of age; he has never been incarcerated and is employed in Northern Manitoba. While his parents are not incarcerated presently, he has had little contact with them in the past two to three years.

They did not attend the hearing. [ 74 ] The Crown took the position that although the individuals who wrote reference letters thought they knew him, they did not. He argued the accused had deceived and manipulated them into believing the good things they wrote about him, all the while living his life as a drug dealing gangster carrying a loaded handgun. Clearly it was while he was working at Build that he chose to get involved with the Vendetta group. I agree that during this period of time he was leading somewhat of a double life.

However, there certainly was a period of time that he was doing very positive things in the community as these letters attest.

CRIMINAL RECORD [ 75 ] Choken has the following criminal record: Adult January 26, 2012: Offence Date Disposition Possession for the purposes of trafficking April 9, 2011 18 months; s.109 ten year weapons prohibition; DNA order Failure to Comply with undertaking to OIC July 4, 2011 30 days concurrent Breach Recognizance (curfew) July 12, 2011 30 days concurrent Breach Recognizance (bail supervision) August 3, 2011 30 days concurrent Breach Recognizance (curfew) August 9, 2011 30 days concurrent May 12, 2011:

Offence Date DispositionAssault June 4, 2010 Conditional discharge, oneyear probation Youth March 12, 2009: Offence Date DispositionFailure to comply sentence (curfew) September 2, 2007 ProbationFailure to comply sentence (KPGB) September 19, 2007 100 CSW hoursFail to comply undertaking (abstain) August 2, 2008 Concurrent on all threeoffences July 24, 2007: Offence Date DispositionAggravated assault August 26, 2006 289 days pre-sentencecustody; plus 15 days (10secure; 5 communitysupervision); s. 51Y.C.J.A. 10 year weaponsprohibition; DNA order; 1year probationAssault October 27, 2006 1 year probationconcurrent DISCUSSION [76] The purpose and principles of sentencing are set out in s. 718 – 718.2 of the Criminal Code of Canada.

The fundamentalpurpose is to contribute to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that haveone or more of the objectives set out in s. 718, including, among others, denunciation, deterrence, and rehabilitation. The fundamentalprinciple is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The focusof sentencing must be on the particular circumstances of the offence and the particular circumstances of the offender before the court.

Itis an individualized and difficult process. [77] The Court is also required to increase or reduce the sentence for aggravating or mitigating circumstances relating to the offenceor the offender. Evidence that the offence was committed in association with a criminal organization is specifically declared to beaggravating. [78] In addition, the parity principle requires similar sentences in similar circumstances; totality requires that combined sentencesmust not be unduly long or harsh; restraint requires less restrictive sanctions if appropriate. [79] Of particular importance is s. 718.2(

e) requiring all available sentences other than imprisonment that are reasonable in thecircumstances be considered for all offenders, with particular attention paid to Aboriginal offenders. This latter clause has been given acontextual and purposive

interpretation by the Supreme Court of Canada such that in every case involving an Aboriginal offender,different approaches to sentencing are to be considered even, as here, where a jail sentence is manifestly required. [80] In R. v.

Ipeelee, 2012 SCC 13, the Supreme Court of Canada recently reinforced the need for all sentencing judges to takejudicial notice of factors such as colonisation and residential schools, and resulting social issues such as extreme poverty, alcoholism,violence, and reduced educational and employment opportunities that have plagued many Aboriginal people and played a significant rolein both the high rates of incarceration and of victimization of them.

This reality is very stark in the cases heard in this Court every day.The Supreme Court stated at paragraph 87: 87 The sentencing judge has a statutory duty, imposed by s. 718.2(

e) of the Criminal Code, to consider the unique circumstances ofAboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, ...and a failure to do so constitutes an error justifying appellate intervention. [81] Counsel have provided a variety of sentencing precedents.

I have reviewed all of the cases provided but I did not find any ofthem to be sufficiently similar in terms of circumstances of the offence and the offender to provide direct assistance in fashioning asentence in this case, although I will consider a number of them in more detail, infra. The cases include: R. v. Howell, (Ont. SC) R. v. Borde, (Ont. C.A.) R. v. Demchuk, November 24, 2011 MBPC (not yet reported)

R. v. Iyeke, 2009 Carswell Ont. 1771 (SCJ) R. v. Reid, 2009 ONCJ 582 R. v. Brown, 2010 ONCA 745 R. v. Leask (1996), (MB CA), 112 C.C.C. (3d) 400 (Man. C.A.) [82] Before looking at some of those cases, I will set out some of the aggravating and mitigating factors to be considered. [83] There are numerous aggravating factors including:

(1) The handgun was loaded and ready to fire (as opposed to ammunition being merely accessible);

(2) The gun was easily accessible to Choken, at his feet;

(3) He had the gun in a vehicle travelling through a residential neighbourhood;

(4) He was a proud member of a criminal organization, pending on a drug trafficking charge to which he has since plead guilty;

(5) He was not coerced into gang membership under desperate circumstances. Instead he made a conscious choice to join the gangwhile in a program designed to provide supports to him, and at a time when he had other community supports available to him that hechose not to avail;

(6) He joined and continued in the organization at a time when a violent drug war was going on in the streets of Winnipeg; he had thegun for “protection” because of the gang wars;

(7) He was in a vehicle driven by a fellow gang member that was being driven towards the residence of a rival gang associate;

(9) He has a prior record for violence, albeit mainly as a youth. [84] In terms of mitigating circumstances, there are several to consider.

(1) The guilty plea, which is generally also taken to be a sign of remorse. I am doubtful that the plea is a sign of true remorse. Bypleading guilty he also accepted responsibility for the offence. Some credit should be given for the guilty plea;

(2) His youth; he was only 19 at the time of the offence and very minimal adult record – only one prior conviction for assault, forwhich a conditional discharge was granted;

(3) The positive contributions he made to his community in helping children and youth through his past involvement with theUniversity of Manitoba programs;

(4) He has ongoing community support from those he worked with in those programs;

(5) His leadership abilities and gifts in dealing with children and youth;

(6) His tragic background of neglect, personal abuse, witnessing abuse of his mother, poverty, abandonment, minimal education,alcoholism of his parents, criminal role modeling by his parents, particularly his father, much of which is related to the historical andongoing disadvantage faced by many Aboriginal people. CONSIDERATION OF CASELAW [85] The Crown relied on R. v. Reid, 2009 ONCJ 582 in support of the argument for a substantial sentence for the possession of theloaded handgun, and also in support of the proposition that the breach of the weapons prohibition order should attract a consecutivesentence.

In that case a 23 year old male with a substantial prior record was sentenced to 50 months for possession of a loaded prohibitedfirearm, 12 months consecutive for possession of the firearm while prohibited, and 12 months concurrent for escaping lawful custody. [86] Reid had been stopped for suspected impaired driving when the police discovered outstanding warrants. As they were arrestinghim, he bolted and after a short chase they took him into custody, discovering a handgun in his underwear and some ammunition in apant leg. At the time he was on probation and bound by two weapons prohibition orders.

There were mitigating circumstances related toa diagnosis of ADHD and the tragic loss of a friend. Letters of reference described him as a caring, compassionate person. His youth, pleaof guilty with attendant remorse and acceptance of responsibility were also noted. [87] He had a prior conviction for using an imitation firearm in the commission of an indictable offence so he was subject to aminimum five-year term. [88] In Reid, as in this case, the Crown argued that the new mandatory minimums have elevated the range of appropriate sentencesfor these gun crimes.

In particular it was argued that “proportionality necessitates conserving the most lenient available sentence . . . forthose cases with significant mitigating features or at least an absence of markedly aggravating features.” Justice Bloomenfeld – whileacknowledging that such a position was not illogical – did not find it necessary to determine that issue, noting the other tenableexplanation that the elevated mandatory minimums merely reflected an upward trend in sentences already recognized in jurisprudence in

light of the growing national concern over gun crime. As an example of that previously evident trend she cited, in para. 22 of herjudgment the passage from R. v. Ferrigon, (ON SC), [2007] O.J. No. 1883 (S.C.J.) at paras. 25-26: ... in which the 25-year-old accused with a prior related record was sentenced to 6 1/2 years for running from police and depositing aloaded handgun in a window well, Justice Molloy commented: Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous.

A person who loads ahandgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person... itis because of the extreme danger of handguns and the senseless carnage and loss of life occasioned by their use that our courts haverepeatedly emphasized the importance of denunciation and deterrence in sentencing for weapons offences. She concluded: Accordingly, I would require further support for Mr.

Fraser's submission before accepting that all sentences imposed prior to theamendments would have been higher now, or that the range of sentence for these offences has been raised by some unquantifiableamount. [89] As did Justice Bloomenfeld, I find the circumstances here clearly call for a sentence above the minimum, due to the aggravatingcircumstances. I agree that deterrence and denunciation, and in some cases separation from society, are the main objectives in dealingwith offenders who carry loaded handguns, because such persons, including Choken, are clearly dangerous.

Armed gangsters prepared towage urban warfare for control of the drug trade, or out of misplaced loyalty to their criminal organizations, cannot be tolerated on ourstreets. [90] Defence Counsel urged the Court to pay heed to the dicta in Leask, supra, and Borde, supra, that the Courts should take arestrained approach when considering youthful offenders facing a first jail sentence. I am well aware of Leask, and the significant bodyof case law on youthful first offenders facing sentences of incarceration.

I recently reviewed many of these cases in detail in R. v.Kotelko, 2011 MBPC 76 at paragraphs 174 – 187 and 191 – 196 including those referring to the normally attenuated role of generaldeterrence in such cases. [91] There are situations, however, that cry out for significant jail sentences, even for first offenders. Both Parliament and the Courtshave recognized this to be the case generally where loaded guns are involved.

Lenient sentences for youthful offenders that in other casesof crime may be justified are simply not appropriate here, given the penchant of gangs to use young armed men as the foot soldiers in theurban warfare. Choken by carrying the loaded handgun in a public place – here in a vehicle passing through a residential neighbourhood– presented such an obvious danger to the public that a sentence at or near the three year minimum is wholly inappropriate, even for ayoung adult such as Choken.

To the extent it is possible to do so through the imposition of penitentiary sentence, young men like Chokenand Choken himself must be deterred from arming themselves with weapons of death and roaming the streets of Winnipeg as proud gangwarriors. In such a serious case as this, a sentence for a youthful offender should be fashioned to fulfill the objectives of both general andspecific deterrence, as well as denunciation. [92] Defence counsel relied on R. v.

Demchuk, supra, where my colleague Lismer P.J. sentenced the accused, who was also subjectto the three year minimum under s. 95(1), to a period of four years incarceration, with a consecutive one year period for the three otherless serious weapons related charges. In that case the accused was 30 years old and had a record of convictions including one for drugtrafficking. He was a drug dealer who had run afoul of a criminal organization. The police learned that there may be a hit out onDemchuk’s life and warned him.

Demchuk had a handgun and a large sack of ammunition on his home, he said, for his own protection.He told authorities he was worried about someone coming through the door and killing him and his girlfriend. Defence pointed out thatDemchuk was much older and had a more significant record than Choken. [93] In my view the circumstances in this case are much more aggravating. In Demchuk the dangerous weapon was kept at home,not taken into the community and transported in a vehicle through a residential neighbourhood as it was in this case.

The potential foruse in gang warfare on the streets of Winnipeg, risking the lives of innocent people is evident here, but missing in Demchuk. DespiteChoken’s youth and more limited record, the seriousness of the offence justifies a higher sentence than imposed on Demchuk. GLADUE FACTORS [94] In this case, despite the accused’s acceptance of sole responsibility for the offence, his degree of responsibility – important tothe proportionality analysis – cannot be assessed oblivious to his Aboriginal background and related life circumstances and familyissues.

The drive for companionship, caring and acceptance and “sense of family” is a strong human trait. His misplaced and dangerouschoice to seek fulfillment of those kinds of needs through gang membership is to be deplored and condemned because of the terrible riskto the public that goes hand in hand with that choice.

But that choice needs to be understood in the context of Choken as an individualperson whose life circumstances left him feeling alone and unloved, whose childhood and youth experiences had been shocking andtragic. [95] The Gladue factors present here have a role to play not only in the proportionality analysis, but also in assessing the mitigatingfactors, in order to determine a just sentence. On the other hand, Choken is a potentially dangerous individual. He has a long history ofviolence and fighting, dating to his early days in school.

I also accept that he can be manipulative and deceptive, character traits that maywell have arisen from his need to survive on the streets. CONCLUSION ON SENTENCE FOR POSSESSION OF LOADED HANDGUN [96] The Crown’s position in favour of a seven year sentence, consecutive to the 18 months being served, perhaps is justified whenconsidered through the lenses of deterrence, denunciation and the serious circumstances of the offence.

However it fails to take adequateaccount of Choken’s extreme youth, and consequent need for rehabilitation to be given sufficient weight in the sentencing equation, aswell as the very real Gladue related factors that cannot be overlooked.

[ 97 ] On the other hand, the defence proposal for a global three and a half years does not adequately reflect the seriousness of the offence and the need for deterrence. [ 98 ] In conclusion I find that five (5) years in a penitentiary is the appropriate sentence for the offence under s. 95(1) (a). This is a lengthy sentence for a young person with Choken’s background. Hopefully this lengthy period will be effective to deter him and other young adults from embracing the armed and dangerous gang lifestyle.

The seriousness of the offence and his responsibility (and the need for a strong message of deterrence) for it requires this lengthy sentence. While I am hopeful for his rehabilitation, I expect that given his background, that process may take some time. [ 99 ] The sentence will be consecutive to the 18 month sentence now being served for the drug trafficking offence imposed January 26, 2012. As proposed by the Crown, I impose a sentence of one (1) year for the obliterated serial number, also consecutive to that 18 month sentence, but concurrent to the five (5) years imposed under s. 95(1) (a).

That leaves the sentence for the possession while prohibited, contrary to s. 117.01(1) to be considered. CONSIDERATION OF SENTENCE FOR VIOLATION OF WEAPONS PROHIBITION [ 100 ] I agree with the Crown and Justice Bloomenfeld in R. v. Reid , supra , that there should be a consecutive sentence imposed to make weapons prohibitions orders meaningful tools of the criminal justice system. It seems that a sentence of one year consecutive suggested by the Crown and imposed in other cases, is not unreasonable.

However, I take into account that the weapons prohibition was imposed on a very youthful Choken, when he was an immature, 15 year old youth as part of a Y.C.J.A. disposition. In these circumstances, I am prepared to impose a sentence of lesser duration than had the prohibition been imposed on him as an adult. The sentence on that count is six (6) months consecutive to the sentence now being served and also consecutive to the five (5) year sentence for the s. 95(1) (

a) offence. CONSIDERATION OF TOTALITY [ 101 ] In the result, combined with the earlier 18 month drug trafficking sentence imposed, Choken will be serving a total sentence of seven (7) years as his first penitentiary sentence. I am required to consider the principle of totality and take a “last look”. To some extent I agree that the 18 month sentence for trafficking in the crack cocaine already reflects an apparent discount in anticipation of the lengthy penitentiary sentence.

In any event, I find that the resulting total sentence is not unduly harsh or significantly disproportionate to the most serious offence (possession of the loaded firearm), nor do I find the total sentence one that could be considered crushing in the circumstances. Given these findings it is not appropriate to reduce the sentence any further on account of the totality principle.

CONCLUSION [ 102 ] What is discouraging about this case is that despite many positive programs to which young Choken had access, many caring individuals who saw in him great potential, and his obvious talents and abilities, after a short time away from gangs, he once again was drawn to the gang lifestyle. This demonstrates just how difficult it is for some extremely damaged and disadvantaged individuals to overcome their background.

As noted, I believe that he can be manipulative and deceptive, again, perhaps a survival skill he developed, but this tendency will hinder his rehabilitation and he needs help to change this trait. [ 103 ] It is tragic that Choken’s upbringing prepared him so well for the negative choices he made, and that despite many personal strengths, supporters who saw the good and the potential in him, and the opportunities he was provided with to turn away from crime, he gravitated back to a life that is so destructive to him, his community and the broader community.

For this he needs to be held accountable and punished accordingly. But he ought not to be written off as incapable of change.

He deserves assistance, as well as a measure of compassion and understanding for the unfair life circumstances that defined his childhood and youth, and left him so vulnerable to the trap of the gang subculture. [ 104 ] In fact, every opportunity should be provided for Choken to be rehabilitated and in particular, I ask the authorities to make available intensive one on one counselling early in his sentence to help him come to terms with the many issues arising from his tragic childhood and youth as well as other culturally appropriate programming.

As he said “he just kept smiling and moved on superficially”, never dealing with those issues in depth. When he is released I expect supports to be put in place so that Choken can have a meaningful opportunity to live a life away from crime and I hope his supporters will fulfill their pledges to him. [ 105 ] I order that he be subject to a weapons prohibition under s. 109 for his lifetime, and that the handgun seized be forfeited and destroyed.

Given that I have already ordered that he provide a sample for the DNA data bank in connection with his drug trafficking sentence, it is unnecessary to make a further such order. [ 106 ] Mr. Choken has spent five and one half months in custody from August 9, 2011 to January 26, 2012 for which it is agreed he should be given credit at the rate of one to one. This credit will be attributed to the six month consecutive sentence imposed at para 100 with the result that the sentence on that offence is 15 days consecutive to the five year sentence imposed for the offence under s. 95(1) (

a) offence referred to in paragraphs 98 and 99. [ 107 ] Costs and surcharge are waived. _________________________ MARVA J. SMITH P.J.