R. v. Bitternose, 2023 BCPC 6

Citation: R. v. Bitternose 2023 BCPC 6 Date: 20230110 File No: 242294-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. OWEN REGINALD BITTERNOSE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: Emma Waterman Counsel for the Accused: Dale Melville Place of Hearing: Surrey , B.C. Date of Hearing: October 3, 2022 Date of Judgment: January 10, 2023

INTRODUCTION [ 1 ] On December 29, 2021, Mr. Owen Reginald Bitternose pled guilty to the following Counts 1 and 3, on Information No. 242294- 1: Count 1 : Owen Reginald BITTERNOSE, on or about the 7 th day of November, 2020, at or near Surrey, in the Province of British Columbia, did possess a prohibited firearm, restricted firearm, or non-restricted firearm, without being the holder of a licence under which he may possess the firearm, or without being the holder of a registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code .

Count 3 : Owen Reginald BITTERNOSE, on or about the 7 th day of November, 2020, at or near Surrey, in the Province of British Columbia, did possess a firearm, prohibited weapon, restricted weapon, prohibited device, a modified SKS rifle, while he was prohibited from doing so by any order under this Act or any other Act of Parliament, contrary to

Section 117.01(1) of the Criminal Code . [ 2 ] The Crown seeks a jail sentence of 18 months on Count 1 and six months on Count 3, to be served consecutively. The Crown also seeks a lifetime firearms prohibition order under s. 109(1) (

d) of the Criminal Code on both Counts, and a DNA order under s. 487.051(1) of the Criminal Code , on a secondary designated offence basis, also to be attached to both Counts. [ 3 ] The defence submits that a sentence of 18 months less one day on Count 1 and six months on Count 3, with a global sentence of 24 months less one day to be served as a conditional sentence order (“CSO”), followed by a two-year probation order, is an appropriate sentence for Mr. Bitternose. [ 4 ] The defence takes no position on the two ancillary orders the Crown seeks.

It asks that the victim surcharge be waived, as it would cause undue hardship to Mr. Bitternose. CIRCUMSTANCES OF THE OFFENCES [ 5 ] On November 7, 2020, Mr. Bitternose was drinking and hanging out with some people outside a hotel on 104 Street, in Surrey, British Columbia. One of the men he was hanging out with decided to go with him to his place to hang out and continue to drink. [ 6 ] That evening, at or about 7:20 p.m., a Surrey RCMP officer was conducting traffic patrol in the vicinity of 105A Avenue and King George Boulevard in Surrey, British Columbia.

He noticed, and went over to, a taxi stopped, with its hazard lights on. The taxi driver told the officer that there was an intoxicated man in the backseat, yelling racial slurs and punching the glass divider. The officer opened the backseat door and found a visibly intoxicated man with a strong odour of liquor emanating from his breath, who was clutching a backpack in his hand. The officer arrested the man for causing a disturbance. This man was later determined to be Mr. Bitternose. The index offences arose out of a search incidental to arrest.

The police found an unloaded modified SKS rifle (the “Rifle”) and an empty bottle of vodka in the backpack. There was no ammunition on Mr. Bitternose’s person or in the backpack. CIRCUMSTANCES OF THE OFFENDER [ 7 ] Mr. Bitternose’s circumstances are horrifically tragic. The following is a

summary of the pertinent circumstances gleaned from the pre-sentence report dated February 11, 2022 (the “PSR”), the Gladue report dated June 17, 2022 (the “ Gladue Report”), and the submissions of the Crown and defence at the sentencing hearing: (

a) Mr. Bitternose was born on [omitted for publication] in Regina, Saskatchewan. He is 45 years of age now, and was 43 years at the time of the index offences. (

b) Mr. Bitternose is Saulteaux/Cree and a member of the George Gordon First Nation. (

c) Mr. Bitternose has an older sister M., older brother Q., and younger sisters L. and V. He has two children: daughter D., aged [omitted for publication], and son J., aged [omitted for publication]. (

d) Mr. Bitternose’s sister L. was murdered in 2019, his mother G.B. passed away in 2000 or 2001 from cirrhosis as a result of chronic alcoholism, and his father V.B. passed away in 2021 from Covid-19. (

e) Multiple generations of Mr. Bitternose’s family attended the Gordon’s Indian Residential School, including his grandparents, parents, brother and himself. At around age five, Mr. Bitternose attended this residential school for about four years, where he was sexually abused. The Gordon’s Indian Residential School is infamous for its abuses of children, and it was one of the last residential schools in Canada to close in 1996. (

f) Mr. Bitternose’s parents were severe alcoholics. Mr. Bitternose describes his mother as a “scary person.” He and his brother lived with their paternal grandparents on the George Gordon First Nation, whereas his sister M.B. lived with their maternal grandparents on the Standing Buffalo First Nation, which was about an hour from the George Gordon First Nation. However, Mr. Bitternose was separated from his sister M. until he was 19 years of age. (

g) After Mr. Bitternose’s paternal grandparents passed away, he and his brother went to live with their aunt and uncle in Regina, where he began Grade 3. He was active in sports and enjoyed being social. However, he experienced a lot of racism in the city. (

h) Mr. Bitternose did not have contact with his parents during his childhood and youth. (

i) Even though his aunt and uncle provided a stable home, Mr. Bitternose started getting into trouble at about age 12. He became involved in substance use and criminal activity with his friends. He quit school after Grade 8. He was in juvenile detention. He spent the

majority of his teen years in custody. At age 18, he was released from custody. He began working in Regina. However, he continued to struggle with his alcohol and other substance addictions. (

j) Mr. Bitternose’s offending continued, as an adult. He has an unenviable criminal record. The Crown points out that Mr. Bitternose has been convicted of an offence at least once a year since 1996. Mr. Bitternose’s offences gradually escalated from property and driving related offences to more serious and violent offences, including aggravated assault, assaulting a peace officer, robbery, and discharging a firearm with intent. At the time of the index offences, Mr. Bitternose was already on two mandatory lifetime firearm bans. (

k) Mr. Bitternose has spent a significant part of his adult life in federal custody, including at the Special Handling Unit (“SHU”) in Quebec. He spent two years and nine months at the SHU, one year in Edmonton, and in a Saskatchewan penitentiary for 11 years. He was then released from federal custody in May 2020. He came to Vancouver, British Columbia, to extricate himself from further negative influences in Saskatchewan. (

l) While incarcerated, Mr. Bitternose’s aunt and uncle passed away from cancer in 2018 and 2019, respectively. (

m) Mr. Bitternose’s sister-in-law, S.M., states that Mr. Bitternose has endured a lot of trauma in his life, he was incarcerated consecutively from 2004 to 2020, and that when she met him upon his release in 2020, “he was so happy.” (

n) After his release, Mr. Bitternose started working in construction in Vancouver, which he says he really loved. (

o) However, in the summer of 2021, Mr. Bitternose was hospitalized with pneumonia and a double lung infection. He was in a coma for 10 days. He is unable to physically exert himself as he used to. He has been placed on permanent disability. He expresses frustration with his inability to work, as it brought him joy and purpose. He believes he is in good mental health. He has not been diagnosed with any mental disorder. He denies any serious traumatic brain injury, but shared that he was hit by a car at age five and spent weeks recovering. (

p) At the time of the sentencing hearing, Mr. Bitternose was registered at the [omitted for publication] and was in the process of completing courses to obtain his high school diploma. He was attending this program four days per work. After this, his intention is to enrol in computer courses, and also get his trade ticket to become an equipment operator. (

q) Mr. Bitternose is currently living with his girlfriend, M.S., who has known him personally for about two years. She indicates that she has known about Mr. Bitternose for the past 20 years. She came to Vancouver looking for work, and has resided with Mr. Bitternose ever since she arrived in Vancouver. She describes Mr. Bitternose as a “social,” “kind and positive” person, who enjoys going on walks and keeping himself busy. (

r) Ms. M. describes Mr. Bitternose as a “pleasant” and “very well mannered” person. She emphasizes that Mr. Bitternose has the “potential to do really well, but he needs to be around the right people.” She says, he has “stepped away from gang life” and he “realizes that those people are not his family.” (

s) Mr. Bitternose’s sister V.K. says Mr. Bitternose has “good communication skills,” that he is a “hard worker,” and “[h]e’s really good at talking with people. He’s a really loving guy. Even though he went to residential school, he can show emotions.” (

t) Mr. Bitternose is currently unemployed, and he receives social assistance benefits. He is on methadone, and is said to be abstinent from illicit substances and alcohol. He smokes marihuana on a regular basis. (

u) Mr. Bitternose has insight into his past addiction issues, and understands how anti-social peers can influence him and his future. He regrets associating with the unknown individual who punched the plexiglass in the cab he was in, and says he feels “stupid and foolish” for involving himself with people he knows can get him into trouble. Although he maintains he was not aware of what was in the bag this other individual left behind in the cab, he understands that “by associating with ‘those’ types of people he would be risking issues with the law.” (

v) Mr. Bitternose has been compliant with his bail conditions from the time he was placed on them on November 9, 2020 in relation to the index offences. For the past two years, he has not incurred any new charges or had any negative police contact. The PSR notes that Mr. Bitternose’s “history of non-compliance in the community only exist[s] in his youth, as it is his only substantial time outside of custody.” (

w) Mr. Bitternose is said to be respectful, and he has maintained good communications with his bail supervisor. (

x) Mr. Bitternose does not have contact with his band currently and does not receive any funding or support. The PSR notes that Mr. Bitternose shares respect for his culture, but does not feel it is an investment, and that it is not a priority for him. However, the Gladue Report indicates that Mr.

Bitternose recognizes the benefits of the following restorative justice and community treatment options and would accept the opportunity to participate: a. trauma counselling through the First Nations Health Authority – Indian Residential Schools Health Resolution Support Program; b. further academic upgrading with the assistance of staff in Indigenous Advising at [omitted for publication] after he completes his Adult Basic Education certificate; c. the Employment, Life Skills & Training program provided by the Vancouver Aboriginal Friendship Centre Society; and d. access to housing support through the Urban Aboriginal Navigation Team – Community Housing Support Services and the TLC (Tenant-Landlord-Community Relations) Project.

CROWN’S SUBMISSIONS

[8] While the Crown does not object to the global sentence of 24 months less a day that the defence seeks, it submits that thissentence must be served in custody, and not in the community by way of a CSO. It says a CSO is not appropriate in Mr. Bitternose’s casedue to Mr. Bitternose’s significant criminal record and public safety concerns. [9] The Crown says Mr.

Bitternose has an extremely aggravating record with serious offences, including aggravated assault, assaultof a peace officer, robbery, and discharge of a firearm with intent; he has been under a s. 109 prohibition order since 1999, and yet hewas found in possession of the Rifle in a taxi, in a public place, when he had been out of custody for only approximately six months; andthe fact that he was intoxicated, while in possession of the Rifle in a public place adds to his recklessness. [10] The Crown submits that denunciation and deterrence are the primary considerations in sentencing Mr. Bitternose.

Given thegravity of Mr. Bitternose’s criminal record and the public safety concerns posed by the index offences, the Crown submits a jail sentenceis necessary. [11] The Crown submits that the case law indicates that a sentence for a s. 117.01 offence is generally served consecutive to a s. 91offence. [12] The Crown referred to the following cases in support of its position: R. v. McWhirter, 2018 BCSC 1768 (“McWhirter”); R. v.Veranski, 2010 BCCA 211; R. v. Gomes, 2015 ONCA 763; R. v. Frohock, 2009 BCCA 227 (“Frohock”); R. v. Alkins, 2007 ONCA 264;R. v.

Ayala-Barrios, (ON CJ), [2007] OJ No. 5393 (“Ayala-Barrios”); and R. v. Ball, 2014 BCCA 120 (“Ball”). DEFENCE’S SUBMISSIONS [13] The defence says that the Crown’s sentencing position was 24 months’ incarceration before the Gladue Report was completed.However, even after the completion of the Gladue Report, which details the significant Gladue factors in Mr. Bitternose’s background,the Crown’s sentencing position has not changed. The defence argues that the Crown has failed to take into account the Gladue factorspresent in Mr.

Bitternose’s background. [14] The defence further argues that none of the offenders in the case law that the Crown relies on is an Indigenous offender, chargedwith similar s. 91(1) and s. 117.01 offences. I note that in Frohock, the offender was of Métis decent. However, the offences at issue inFrohock were far more egregious (the firearms offences were under s. 91(2), s. 94(1), and s. 95(1)). [15] The defence says, the Supreme Court of Canada, in R. v.

Ipeelee, 2012 SCC 13 (“Ipeelee”), calls upon judges to use a differentmethod of analysis in determining a fit sentence for Indigenous offenders (with the offender necessarily being Indigenous); however, innone of the Crown’s cases, the offenders are Indigenous (with the exception of Mr. Frohock that I noted above). Therefore, the defencesubmits that those cases cannot be useful comparators to determine a fit sentence for Mr. Bitternose. [16] The Crown’s cases of some relevance are McWhirter and Ball. In McWhirter, the Court discussed the range of sentence forfirearms offences. As indicated earlier, Mr.

McWhirter is not Indigenous. He was sentenced to 12 months’ jail for the s. 91(1) offences(at para. 100) and to six months’ jail for the s. 117.01 offences, consecutive to the sentence on the s. 91(1) offences (at para. 104). Atpara. 105, the Court said sentences for s. 117 breaches will typically range between six to 12 months.

Earlier, in Ball, the Court ofAppeal for British Columbia had also said that generally sentences on s. 117 breaches will be consecutive, and will typically rangebetween six to 12 months (at para. 24). [17] The defence submits that the principles of denunciation and deterrence can be satisfied by a CSO. It says by giving effect to therehabilitation principle and applying the unique approach necessary in sentencing Mr. Bitternose, as an Indigenous offender, lead to aCSO being a fit sentence for Mr.

Bitternose for the index offences. [18] The defence referred to the following cases in support of its position: Ipeelee; R. v. Parranto, 2021 SCC 46; R. v. Sellars, 2018BCCA 195 (“Sellars”); R. v. Hiscock, 2020 BCCA 355; R. v. Mero, 2021 BCCA 399 (“Mero”); R. v. Cootes, 2011 BCCA 398; and R. v.Colligan, 2020 BCSC 1139 (“Colligan”). In particular, it relies on Sellars and Mero. [19] Mr. Sellars was an Indigenous offender. The three firearms offences at issue in Sellars included unauthorized possession of aloaded handgun, contrary to s. 95(1), which was more serious than the s. 91(1) offence that Mr.

Bitternose has pled guilty to. [20] In Sellars, the Court of Appeal for British Columbia allowed the Crown’s appeal of an order suspending the passing of sentenceand imposing a three-year probation order. The Court concluded that in light of the significant Gladue factors applicable to Mr. Sellars’circumstances and his exceptional mitigating circumstances, a sentence below the range for firearms offences (being three to four years)was justified. The Court varied Mr. Sellars’ sentence to a conditional sentence order of two years less one day, with specified conditions. [21] Mr.

Mero was also an Indigenous offender. He was convicted of possession of a loaded restricted firearm and possession for thepurpose of trafficking. He appealed his custodial sentences. His appeal was allowed. The Court concluded that in light of the significantGladue factors applicable to Mr. Mero’s circumstances, a penitentiary sentence of 40 months on the weapons charge and eight monthson the trafficking charge were unfit.

Rather, a conditional sentence order of two years less a day on the weapons charge and 12 months’probation on the trafficking charge were determined to be proportionate and better achieved the sentencing goals of denunciation,deterrence and rehabilitation, while meaningfully addressing the overrepresentation of Indigenous people in custody. The Court alsonoted that the reduced sentences were in line with sentences imposed for similar offenders convicted of similar offences in similarcircumstances.

EFFECT ON THE VICTIM(S) [22] The parties did not make any submissions with respect to any victim impact, other than the Crown noting the general publicsafety concern due to the presence of the Rifle in a public place. PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING

[23]

Section 718 of the Criminal Code states that “[t]he fundamental purpose of sentencing is to protect society and to contribute,along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justsanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [24]

Section 718.1 sets out the fundamental principle in sentencing. It states that “[a] sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender.” [25]

Section 718.2 sets out other sentencing principles that a sentencing judge must take into account in imposing a sentence. It states,in part, as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender,...

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. DISCUSSION [26] The defence agrees with the Crown that deterrence, denunciation and protection of the public are important sentencing principlesin this case, but emphasizes that equally important is Mr. Bitternose’s rehabilitation.

I agree. [27] However, the challenge lies in crafting a sentence that balances all of these important sentencing principles, giving particularattention to the circumstances of Mr. Bitternose, as an Indigenous offender. [28] In R. v. Lacasse, 2015 SCC 64, at para. 58, the Supreme Court of Canada pointed out that the determination of a just andappropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation, and that everything dependson the gravity of the offence, the offender’s degree of responsibility, and the specific circumstances of each case. [29] In R. v.

Bhalru and R. v. Khosa, 2003 BCCA 645 (“Bhalru/Khosa”), the Court of Appeal for British Columbia discussed atlength how the level of moral culpability of an offender is determined. At paras. 28 and 37, the Court said: [28] The level of moral culpability is determined in part by considering the intentional risks taken by the offenders, the degree ofharm that they have caused, and the extent to which their conduct deviates from the acceptable standard of behaviour: see C.A.M., supra80; R. v.

Johnson (1996), (BC CA), 112 C.C.C. (3d) 225 ¶33, 84 B.C.A.C. 261. . . . [37] The assignment of blameworthiness for a particular course of conduct depends not only on the circumstances of the offence, butalso on the nature of the offender. The fundamental principle of sentencing requires that a sentence be proportionate to the gravity of theoffence and the degree of responsibility of the offender. [30] Here, in terms of the gravity of the index offences, it is highly concerning that Mr.

Bitternose was found in possession of theRifle, in a taxi, in a public place. [31] The Crown pointed to the following passage in Ayala-Barrios, wherein the Court, at p. 4, said: There is no doubt that the existence of illegal guns on the streets is a serious problem. . . . there is no purpose for a sawed off shotgun butto intimidate or seriously harm someone.

Any sentence imposed by the court has to be sufficiently severe to reinforce the message that illegal possession of firearms will not betolerated and reflects societies [sic] abhorrence for this type of offence. . . . the potential for serious injury or even death is magnified byjust the presence of such a weapon. [32] In the end, the Court imposed a 12-month conditional sentence on Mr. Ayala-Barrios. [33] In Mr. Bitternose’s case, the defence points out that the firearm offence that Mr. Bitternose pled guilty to is possession of a

“modified” SKS rifle under section 91(1), and that an SKS rifle is a non-restricted firearm. It says there appears to be some modifications to shorten its length, but there is no further evidence before the court that it is anything other than a non-restricted rifle. It was not loaded, and Mr. Bitternose did not use the Rifle in any threatening way. It was simply present in the backpack. Mr.

Bitternose did not possess any ammunition on his person or in the backpack. [ 34 ] Regardless, I am of the view that Canadian society would not condone anyone carrying a firearm in a public place, unless authorized to do so by law. [ 35 ] However, there are several other factors which mitigate Mr. Bitternose’s moral culpability. I am not satisfied that Mr. Bitternose intentionally took the risk of possessing the Rifle in a public place. Mr. Bitternose was highly intoxicated during the incident, and was in the company of other likely unsavory people. He does not know how he came into possession of the Rifle.

The Rifle was not loaded, and no one was harmed during the incident. [ 36 ] Mr. Bitternose’s moral culpability is also reduced by the significant Gladue factors present in his circumstances. [ 37 ] I have a statutory duty, under s. 718.2 (

e) of the Criminal Code , to consider the unique systemic or background factors that may have played a

part in bringing Mr. Bitternose before the court and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for Mr. Bitternose because of his particular Indigenous heritage or connection, as noted in Ipeelee , at paras. 59 and 60 : [59] . . . s. 718.2(

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

Section 718.2(

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

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

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

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84). [60] . . .

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. . . . [ 38 ] In Mr. Bitternose’s case, I have the benefit of the PSR, the Gladue Report, and detailed submissions from the defence with respect to Mr. Bitternose’s unique personal circumstances, which I have already detailed above. There can be no doubt that Mr.

Bitternose, and his family members, have been hugely impacted by matters such as the history of colonialism, displacement, and residential schools that the Supreme Court of Canada referred to in Ipeelee , at para. 60 . Mr. Bitternose’s sister, V.K., discussed with the Gladue Report writer of the devastating impacts the Gordon’s Indian Residential School has had on her family. She says, “Owen [Bitternose] was always so curious about the culture, but he didn’t know where to start,” and the residential school experience for their family members was “really bad. It was terrible.” Mr.

Bitternose appears to have lost connection to his Indigenous heritage, culture, and traditions. As I said, the PSR notes that while Mr. Bitternose shares respect for his culture, he does not feel it is an investment. [ 39 ] Mr. Bitternose’s parents were severe alcoholics. Mr. Bitternose also suffered from alcohol and other substance abuse. He experienced abuse and significant trauma caused by the sexual and physical abuse he endured while attending the Gordon’s Indian Residential School. He quit school after Grade 8, and was in custody for the better part of his life. Ms. M. notes that Mr.

Bitternose “endured a lot of trauma in his life, not just as a child.” Mr. Bitternose says that he faced a lot of discrimination growing up in the City of Regina, and then later within the prison system, he was harshly treated. [ 40 ] In determining a fit sentence, I also need to take into account the mitigating and aggravating circumstances in Mr. Bitternose’s case. Mitigating Circumstances [ 41 ] I find the following circumstances to be mitigating in Mr. Bitternose’s case: (

a) Mr. Bitternose has pled guilty to the index offences, avoiding the need for a trial, thereby saving valuable court time and resources. (

b) Although Mr. Bitternose does not remember how he came into possession of the Rifle, he admits he had knowledge of it even though he did not own it or make any modifications to it, and he accepts responsibility for its possession and his offending. He is genuinely remorseful for what happened. (

c) Mr. Bitternose has been compliant with his bail conditions for the past two years, and he has not committed any new offence. (

d) Mr. Bitternose comes from a significantly disadvantaged background, and has suffered significant abuse and trauma throughout his life. (

e) Mr. Bitternose currently suffers from health issues (serious lung infection), and has been placed on medical disability. (

f) Despite his past and current challenges, Mr. Bitternose has taken concrete and steady efforts to turn his life around, including the

following: a. Although Mr. Bitternose has had a long history of substance addiction, he has been clean and sober for the past two years. b. Mr. Bitternose, of his own volition, has been attending counselling to address his past trauma. c. Mr. Bitternose is in the process of completing his high school diploma at the [omitted for publication], and he intends to continue his education by enrolling in computer classes and also getting his trade ticket to become an equipment operator. (

g) Mr. Bitternose is described as a kind, loving, positive and hard working person. He has the support of his girlfriend, and his close family members. Aggravating Circumstances [ 42 ] I find the following circumstances to be aggravating in Mr. Bitternose’s case: (

a) Mr. Bitternose has a significant criminal record, including serious violent offences that includes a related firearm conviction for discharge of a firearm with intent. (

b) Mr. Bitternose was placed on three s. 109 mandatory firearms prohibition orders, in 1999, 2003 and 2005, respectively. He was subject to the latter two orders for lifetime firearms prohibition when he committed the index offences. (

c) Mr. Bitternose was found in possession of the Rifle in a taxi, in a public place, while intoxicated. [ 43 ] While the Crown and the defence agree on the length of the sentence, they disagree on how it should be served – in jail or in the community, raising the issue of whether a CSO is appropriate in Mr. Bitternose’s circumstances. [ 44 ] Mr. Bitternose is a man who has endured unspeakable harshness and trauma in his life.

He now appears to be in the midst of finding the right path forward in his life, by going to school, extricating himself from his past negative peers, and trying to keep out of trouble from the law. [ 45 ] The question is, should this traumatized man, who is trying to build a positive life for himself, be thrown in jail again for the index offences? Is that the only way that the sentencing principles of deterrence, denunciation, and protection of the public can be met, as the Crown submits? [ 46 ] The defence says that while Mr.

Bitternose’s record is lengthy and indicates some violent and serious offences, including discharging a firearm, a criminal record is only one factor in sentencing considerations. It says that while the index offences are serious, they are not violent. [ 47 ] The defence submits that to go from serving two years and nine months at the SHU, which is the “maximum” of the “maximum- security facilities” in the country to attending classes at the [omitted for publication] and obeying a release order for more than two years while in the community, speaks to Mr.

Bitternose’s character and the extent of his efforts to turn his life around. [ 48 ] The defence notes that Mr. Bitternose has never been placed on a CSO in the past. It says Mr. Bitternose first went to residential school, and then to jail. Given his compliance with his release order for the past two years, there is no indication that he will not comply with a CSO. [ 49 ] Taking a holistic view of all of the circumstances in Mr. Bitternose’s case, I am not convinced that he should serve the proposed sentence of 24 months less a day in custody. [ 50 ] I will now turn to whether a CSO is appropriate in Mr.

Bitternose’s case. [ 51 ] In Colligan , which also involved an Indigenous offender, the Court, at para. 53, provided a helpful distillation of the principles relating to CSOs. The Court said: [53] Proulx is the leading case on CSOs. In the context of this case, the following principles from Proulx are germane: 1. CSOs were introduced to address the problem of over-incarceration in Canada by reducing reliance on incarceration as a sanction and increasing the use of restorative justice principles; 2. CSOs must be distinguished from probation.

While probation is primarily a rehabilitative tool, CSOs have both punitive and rehabilitative aspects; 3. Generally, CSOs should include punitive terms that restrict an offender’s liberty, such as house arrest; 4. Unless the Code excludes a CSO as a sentencing option, there should be no presumptions for or against the use of a CSO in relation to any specific offence; 5. A sentencing judge is not required to first impose a prison term of fixed duration and then consider if it can be served in the community.

Rather, the sentencing judge should reject a penitentiary term and probation measures as inappropriate and then consider whether the remaining option of imprisonment of less than two years could be appropriately served in the community; 6. A CSO need not be of the same duration as the sentence of incarceration that would otherwise have been imposed. All that is required is that the CSO is a fit sentence;

7. The requirement that the sentencing judge be satisfied that the safety of the community would not be endangered by the offender serving their sentence in the community is a condition precedent to the imposition of a CSO; 8. In making this threshold determination, the sentencing judge should consider the risk posed by the specific offender and not the broader risk of whether a CSO would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law; 9. A CSO can provide significant denunciation and deterrence.

Generally, the more serious the offence, the longer and more onerous the CSO should be; 10. In some cases the need for denunciation or deterrence may be so pressing that incarceration will be necessary; 11. Generally, a CSO will be better than incarceration at achieving restorative objectives, such as rehabilitation, reparations and promoting a sense of responsibility in offenders; 12. Where a combination of both punitive and restorative objectives may be achieved, a CSO will likely be more appropriate than incarceration; and 13.

A CSO may be imposed even though there are aggravating circumstances that increase the need for denunciation and deterrence. [ 52 ] In Proulx , at para. 46, the Supreme Court of Canada, listed the criteria that must be satisfied before a CSO can be imposed under s. 742.1.

It said: [46] This provision lists four criteria that a court must consider before deciding to impose a conditional sentence: 1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; 2) the court must impose a term of imprisonment of less than two years; 3) the safety of the community would not be endangered by the offender serving the sentence in the community; and 4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [ 53 ] In Mr.

Bitternose’s case, I am satisfied that the requirements under s. 742.1 of the Criminal Code for imposing a CSO are met for the following reasons: (

a) The index offences are not punishable by a minimum term of imprisonment. (

b) The term of imprisonment being imposed is less than two years. (

c) The safety of the community would not be endangered by Mr. Bitternose serving the sentence in the community, as he will be placed under very strict conditions, including curfew, and monitored for a lengthy period of time. He has done well on his release order for the past two years. (

d) Mr. Bitternose indicated to the court that he is focused on completing his Grade 12 education and then getting his trade ticket as an equipment operator, as he enjoyed his work in the construction industry. He has a stable home with his girlfriend, and they are both attending counselling for trauma issues. He is moving forward with his life in a positive and pro social manner. (

e) A CSO is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2, as it strikes a balance between the need to denounce, deter, protect the public, keep Mr. Bitternose (as an Indigenous offender) out of prison, and to give Mr. Bitternose the opportunity to rehabilitate himself. (

f) Mr. Bitternose has spent the better part of his life in jail. He appears resolute from the time he was placed on the release order in November 2020 to change his life around. He appears to have made effective use of this time by engaging in self-reflection, making plans for his future, and attending educational programs and counselling to assist in his rehabilitation. It serves no purpose to incarcerate him, adding to the overrepresentation of Indigenous offenders in custody. (

g) The CSO is a measured approach to allow Mr. Bitternose to continue with his rehabilitative efforts and pursue the recommendations made in the Gladue Report, but at the same time protect the public, as it is a fairly lengthy sentence to be served in the community under tight conditions, and in the watchful eye of his conditional sentence supervisor. (

h) The CSO also serves as a specific deterrence to Mr. Bitternose, as he may end up having to serve the balance of his sentence in custody if he breaches the CSO. SENTENCE [ 54 ] I have considered the unique circumstances of Mr. Bitternose, the nature and extent of the index offences, the submissions and case authorities of the Crown and the defence, and the sentencing purpose, objectives and principles. I conclude that a global sentence of 24 months less a day of imprisonment, to be served in the community in the form of a conditional sentence, followed by 24 months’ probation to be a just sanction for Mr.

Bitternose. [ 55 ] Mr. Bitternose, I am sentencing you on Information No. 242294-1, to a global sentence of 24 months less a day of imprisonment to be served in the community in the form of a conditional sentence, with the global sentence allocated as follows: on Count 1, 18 months less one day, and on Count 3, six months, consecutive to the term on Count 1. You will then be placed on a probation order for a period of 24 months. I will outline the conditions of these orders shortly.

[ 56 ] If you do not follow the conditions of the CSO, you could be arrested, kept in custody, and your conditional sentence could be suspended and you could be ordered to serve the remaining portion in custody. [ 57 ] If you do not follow the conditions of the probation order, you could be charged with an offence, arrested, kept in custody, and, if convicted, you could be sentenced to jail. [ 58 ] I will now turn to the conditions of these two orders. Conditional Sentence Order: TERM OF THE ORDER First, you must comply with a conditional sentence order for a term of 24 months less one day.

The conditions are as follows: COMPULSORY CONDITIONS 3001 You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province.

REPORT 3103 You must report in person to a conditional sentence supervisor at Suite 102, 14245 56 Avenue, Surrey, British Columbia, by 3:00 p.m. tomorrow, January 11, 2023, and after that, you must report as directed by your conditional sentence supervisor. ADDRESS: NO CHANGE WITHOUT CONSENT 3201 When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without the prior written permission from your conditional sentence supervisor.

CURFEW 3209-1 For the first 12 months of this order: 1. You must obey a curfew by being inside the place where you live and regularly sleep between 9:00 p.m. and 6:00 a.m. The exceptions are: a. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for education, employment, or other reasonable purposes. b.

You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. (You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor.) 2. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. 3.

If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. 4. If a peace officer finds you outside the place where you are living during the curfew hours and requests to see the permission, you must show it to the officer. CHANGES IN EMPLOYMENT/ RELATIONSHIP STATUS 3212 You must provide your conditional sentence supervisor with the details of your employment status. You must inform your supervisor within two business days of any change in your employment status.

NO ALCOHOL OR DRUGS 3400 You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription.

NO GO LIQUOR OUTLETS 3403 You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. COUNSELLING 3501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for: a. alcohol or substance use; b. mental health; and c. trauma recovery.

FIREARMS AND WEAPONS PROHIBITION 3610 You must not possess directly or indirectly any weapon as defined by the Criminal Code .

Including: a. firearms and ammunition; b. crossbows, prohibited or restricted weapons or devices, or explosive substances; c. anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d. any imitation firearms or weapons, including any compressed air guns, BB or pellet guns; or e. any related authorizations, licences and registration certificates, and you must not apply for any of these. [ 59 ] I now turn to the Probation Order.

Probation Order: length OF probation order 2000-1 You must comply with the probation order for a term of 24 months. The conditions are as follows: COMPULSORY CONDITIONS 2001 You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation.

REPORTING AFTER COMPLETION OF CONDITIONAL SENTENCE 2104 You must report in person to a probation officer at Suite 102, 14245 56 Avenue, Surrey, British Columbia, within two business days after completion of your conditional sentence, unless you have obtained before completion of your conditional sentence, written permission from a probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer.

ADDRESS: NO CHANGE WITHOUT NOTICE 2202 When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without notifying your probation officer, in writing, at least seven days before making the change. NO ALCOHOL OR DRUGS 2400 You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription.

COUNSELLING 2501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for: a. alcohol or substance use; b. mental health; and c. trauma recovery.

FIREARMS AND WEAPONS PROHIBITION 2610 You must not possess directly or indirectly any weapon as defined by the Criminal Code . Including: a. firearms and ammunition ; b. crossbows , prohibited or restricted weapons or devices, or explosive substances; c. anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d. any imitation firearms or weapons, including any compressed air guns, BB or pellet guns ; or e. any related authorizations, licences and registration certificates, and you must not apply for any of these. ANCILLARY ORDERS Firearms Prohibition Order [ 60 ] Pursuant to ss. 109(1) (

d) and 109(3) of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition and explosive substance for life. This order attaches to Counts 1 and 3 on Information 242294-1. DNA Order [ 61 ] Counts 1 and 3 on Information 242294-1 are secondary designated offences.

After considering the factors set out in s 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. [ 62 ] You must attend at the Surrey RCMP Detachment on or before January 20, 2023 and submit to the taking of the samples. This order is valid until executed.

VICTIM SURCHARGE [ 63 ] Pursuant to s 737(2.1) of the Criminal Code , I am satisfied that because of your precarious financial circumstances caused by your health conditions and unemployment, the surcharge would cause an undue hardship to you. Therefore, I order you to pay no victim surcharge. CONCLUSION [ 64 ] That concludes my reasons for sentence. Thank you. _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia