R. v. Doolan Date:, 2018 BCPC 28

Citation: R. v. Doolan Date: 20180116 2018 BCPC 28 File No: 243802-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAMANTHA NADINE DOOLAN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: G. Proulx Counsel for the Defendant: G. Barnes Place of Hearing: Vancouver , B.C. Date of Hearing: January 16, 2018

Date of Judgment: January 16, 2018 [ 1 ] THE COURT: Samantha Nadine Doolan has pled guilty to the offence of manslaughter of Lauren Lindsay McLellan contrary to s. 236 (

b) of the Criminal Code . The offence date was the 11th day of August, 2016. Ms. McLellan died as a result of being assaulted by Ms. Doolan just outside the entrance doors of the Caprice Nightclub located at 965 Granville Street, Vancouver, B.C. [ 2 ] The assault was partially captured on a CCTV video camera near the entrance to the nightclub. Separate video footage taken on a cellular telephone establishes that the assault concluded with a forceful kick delivered by Ms. Doolan to Ms. McLellan's head area, more particularly, to the upper neck area immediately below her right ear. It was this kick that was the cause of death. Circumstances of the Offence [ 3 ] The following

summary of the incident comes from the testimony of a number of witnesses at the preliminary inquiry, the CCTV video inside and outside the nightclub, and video clips from private cellphones. [ 4 ] At approximately 1:15 a.m., Ms. Doolan arrived at the club with her friend, Ms. Haldane-Robinson. They had been consuming alcohol beforehand and, after arriving at the club, Ms. Doolan consumed yet another drink referred to as a Jägerbomb. Her friend, Ms. Haldane-Robinson testified that she and Ms. Doolan were both intoxicated at the time of the incident. Ms.

Doolan had just had a baby two and a half weeks before the evening in question. She had successfully abstained from consuming alcohol during her pregnancy and up to the evening that I am now dealing with. The alcohol that she drank on August 15th/16th, 2016, was the first that she had consumed in some eight months. [ 5 ] At approximately 1:20 a.m., Ms. McLellan arrived at the club with three of her friends, Ms. Mitchell, Ms. Marshall, and a young woman referred to as Molly. Ms.

McLellan had been consuming moderate amounts of alcohol beforehand. [ 6 ] The two groups met up in the downstairs washroom just before the assault. During the preliminary inquiry, I heard testimony regarding the events in the washroom. The conflicts in that testimony were such that I am unable to come to any reliable conclusions as to what occurred in the washroom. In any event, I am satisfied that the washroom encounter has no real bearing on what ultimately happened outside the nightclub. [ 7 ] The CCTV video shows Ms.

Doolan as she came up the interior stairs from the washroom, turned the corner, and entered the bar area of the club. Ms. McLellan came up the same stairway some 23 seconds later and then entered the bar area of the club about 20 seconds after Ms. Doolan. Inside the bar, Ms. Doolan and Ms. McLellan quickly approached each other. Words were exchanged. There was some minor mutual pushing. We do not know what words were exchanged. They were quickly separated by bystanders. [ 8 ] Two doormen, Pavlovich and Tapp, came into the bar to handle the situation. Tapp dealt with Ms.

McLellan whom he described as animated, angry, pointing, and yelling. He was not able to say what Ms. McLellan was saying. He asked Ms. McLellan to come outside. She was hesitant and questioned why she was being kicked out. She asked, "Why aren't you kicking them out?" Mr. Tapp ushered Ms. McLellan to the foyer area and then out the exit to the sidewalk. He testified that Ms. McLellan did not appear overly intoxicated. He noted no slurred speech or stumbling. As he turned to return to the bar area of the club, Ms.

Doolan came out of the club and walked past him at a fast pace. [ 9 ] While Tapp was dealing with Ms. McLellan, Pavlovich dealt with Ms. Doolan and Ms. Haldane-Robinson. They were swearing and cussing and he felt they were “rubbing it in”, that is, the fact that Ms. McLellan had been told to leave by Mr. Tapp. Pavlovich told them that it was, "Time for you to go, too," which appeared to upset Ms. Doolan. She immediately turned and handed her rather large purse to Ms. Haldane-Robinson, turned back towards the door and then walked quickly to the exit. Ms. Haldane-Robinson followed behind with the purse.

By the time Ms. McLellan had left the club, Ms. Doolan was just five to six seconds behind her. [ 10 ] Outside the club, Ms. Doolan walked in a straight line quickly over to Ms. McLellan and began to assault her. Ms. McLellan fell quickly to the ground either because of pushes or punches leveled by Ms. Doolan. Once she had Ms. McLellan on the ground, Ms. Doolan stood/crouched over her and punched her multiple times in the head area while Ms. McLellan tried to protect herself with her arms raised. Several witnesses observed Ms.

Doolan holding the victim's hair while punching her. [ 11 ] One civilian witness tried to pull Ms. Doolan back to no avail. Various witnesses heard Ms. Doolan utter words such as, "Do you want to talk shit," or, "Where's your mouth now?" Tarquin Schulter, the head doorman, eventually stepped in and tried to restrain Ms. Doolan. He was not successful at first. On the second attempt, he grabbed Ms. Doolan and pulled her off Ms. McLellan. [ 12 ] As he pulled her away, Ms. Doolan managed to step back towards Ms. McLellan one last time and level a soccer kick to the right side of the latter's head.

At the time of the kick, Ms. McLellan was on her back in a semi-raised position with her hands above her head. Ms. McLellan's head snapped back from the force of the kick and she fell back onto the ground in an unconscious state. [ 13 ] Ms. Doolan was wearing knee-high leather boots. She was much heavier than Ms. McLellan by a good 40 or more pounds. The entire assault lasted approximately 25 seconds. [ 14 ] After the kick, the doorman released Ms. Doolan's arms. She and her friend, Ms. Haldane-Robinson, walked down the sidewalk away from the scene. The Medical Evidence [ 15 ] Ms.

McLellan was transported by ambulance to the hospital. Her condition was very grave. She never did regain consciousness. She died 12 hours later in the following afternoon from an acute subarachnoid hemorrhage due to a rupture of the right vertebral artery. In the opinion of the pathologist, Dr. Orde, this injury would have been brought about by the application of significant

blunt force to the head/neck region in keeping with a forcible blow or blows. This caused a massive stroke and bleeding at the base of the brain. [ 16 ] During the course of the autopsy, it was also noted that there appeared to be a fracture of the right side of the first cervical vertebrae, the topmost neck bone in the spine, which contains tunnels through which the vertebral arteries pass. Additional bruising to the head and facial area of Ms. McLellan was also noted during the autopsy. The medical opinion of Dr. Orde is that the bruising and abrasions to the face of Ms.

McLellan are consistent with "at least a few and possibly several" blows to the head. [ 17 ] The autopsy photos, Exhibit 16 at the preliminary hearing, reveal several bruises to the left side of Ms. McLellan's face including a small heart-shaped bruise near her left eyebrow roughly corresponding in size and shape to a heart-shaped ring worn by Ms. Doolan on her right ring finger, as revealed by photos taken post-arrest. Ms. Doolan's right hand also appears swollen in these post- arrest photos. [ 18 ] The doctor also noted that Ms.

McLellan suffered a vertebral disease that renders the vessels more fragile and susceptible to force. He described this as a contributory factor, but it was not the cause of death. Victim Impact Statements [ 19 ] Lauren McLellan was just 28 years old at the time of her death. She has two older brothers. Her parents still live in the family home where she grew up. After attending college, she had a number of jobs, ultimately landing employment as the manager of a Cactus Club restaurant. In the year preceding her death, she was working at a naturopath's office. She had been living in a condo with her dog.

She liked to write, primarily verses. [ 20 ] Lauren’s tragic death has led to enormous despair for her family and friends. Her parents, Joanne and Burns McLellan, have written letters attempting to explain the depth of their grief. Ms. McLellan has written two statements wherein she notes that: “The world lost a beautiful soul on August 11th, 2016.” She sets out in poignant terms the way in which family and friends are experiencing this loss. She goes on to note: There is always an empty seat at the table.

Your leaving has left a huge void in our hearts – a void that used to be filled with your smile and love and sense of fun. [ 21 ] In her second note, Ms. McLellan describes the tragedy in terms of a nightmare that she has every night. It starts as a 3:00 a.m. call from the police telling her that Lauren is in the hospital and continues as she sits by her daughter's hospital bed "waiting for her to die." It ends with her leaving the hospital alone without Lauren.

She concludes in her letter: As a mother, you are supposed to be able to take care of your kids and fix things when something goes wrong, but I can't fix this. My daughter is dead. This is not a nightmare. This is my constant reality. [ 22 ] In his letter, Mr. McLellan notes: “...the loss is expansive, the emptiness and sadness that now lives in my heart have changed me.” He, too, has had many sleepless nights.

He notes that he misses his daughter so much that he “finds forgiveness difficult.” Still, he notes that: “...While the family remains angry, they are reminded of a daughter who was a kind and compassionate person and will want them to forgive.” [ 23 ] Lauren's friend, Ashley Carmody, writes: At times, the despair is so overwhelming it is oppressive. It literally takes my breath away. And while my memories of Lauren are sweet, they also come with the realization that we will never be able to create more memories together.

Circumstances of the Offender, Samantha Doolan [ 24 ] The information set out below is extracted from a variety of sources including submissions of counsel; the presentence report prepared by Dawn Jones (the probation officer); the psychological/psychiatric assessment of Dr. LeeAnne Meldrum (Forensic Psychiatric Services); four older reports from Dr. Mendoza; and the Gladue report prepared by Mr. Cadwallader. [ 25 ] Ms. Doolan was born in Prince Rupert. She is, like her father, Monty Doolan, a status member of the Nisga'a Nation Government.

Her mother, Debbie Bisson, is of mixed Danish and T’simshian First Nations descent. She was the second of three children. She also has an older paternal half-sister. Her parents separated when she was approximately 14 and the family moved to Terrace. Her mother works as a housekeeper and currently resides in Terrace. [ 26 ] Monty Doolan's father, Hubert, the accused's grandfather, was taken into the Indian residential school system as a child. Monty Doolan reported to Mr. Cadwallader, author of the Gladue report, at page 3: My earliest memories as a child were from when I was very young and still in rubber pants.

There was a house party going on with loud music and alcohol everywhere. My parents were passed out somewhere. I was hiding under a table with my blanket. I remember my older brother and sister, Art and Sharon, shoving me out in the open so that a pedophile could grab me. He took me into the bathroom and sexually abused me. When I reported what had happened later to my mother, she gave me a whipping. Later, as I got older, I used to hide every time the music came on and the parties began.

Despite my efforts, I was abused on numerous occasions while growing up by people who were both strangers and older family members. I have tried to forget it, but remember all of it. It is why I drink. [ 27 ] Monty Doolan also referred to his father’s experience with the residential school system. He stated: He told me that he ran away when he could not take the abuse any more. Between the sexual abuse of the priests and starvation, it was a matter of leaving or dying there. Unfortunately, when he did go home, he took the violence and abuse with him.

[ 28 ] When he was 15, Monty Doolan and his siblings were apprehended by the Ministry. He then moved through a series of foster placements for three years. He quit school mid-grade 11 and began to work in the fishing industry. He met up with Debbie Bisson, the accused's mother, at the age of 20. He recalled: We were together for over 20 years. We had a lot of ups and downs. We were young, nuts, doing a lot of drinking back then. Nothing in our life was planned or stable. There was violence in the relationship, but that came from the drinking. [ 29 ] Life for Debbie Bisson, Ms.

Doolan's mother, was equally chaotic and dysfunctional. Her own mother (maternal grandmother to Samantha) was also a residential school survivor. She reported at page 4 of the Gladue report: My father was a mean, violent, and controlling man. When I was around three years old, he killed my mother. He pushed her down a flight of stairs during an argument. The police were never called and he was never charged. It is just the way things were back then when it came to Indian women and the police.

After she was gone and because of his feelings toward Indians, he forbade us from having anything to do with my mother's side of the family. [ 30 ] There was eventually a new stepmother and Ms. Bisson resided with her father and the stepmother, but describes them as alcoholics, so much so that the father and the stepmother would: ... just lock us kids all in a room and go out drinking sometimes for hours, sometimes for a day or more. [ 31 ] She goes on: I was around five years old the first time that I was sexually abused. It was a man who rented the suite below ours.

Later, an uncle was involved in abusing us kids. My oldest sister, Sherry, spoke of how one of her lasting memories is of our father telling his friends, "Just don't bruise their faces," as he sent us off to be sexually abused by his brothers and drinking buddies. There was a lot of trauma and fear. My own life has been indelibly affected in terms of my past relationships and current marriage and my ability to properly raise my children.

I have struggled within maintaining a silence around the sexual abuse and consequently deal with feelings of grief, anxiety, anger, and depression. [ 32 ] When she was 15 years old, Ms. Bisson reports that her father finally drank himself to death. She stayed with her stepmother for a short while, but that did not work and she voluntarily went into foster care at the age of 16, bouncing through a number of foster homes. She eventually met up with Mr. Doolan, the accused's father, and began a relationship with him.

She describes that relationship: I was 19 years old and hanging out in bars when I met Samantha's father. He was very abusive and violent for the first few years, but stopped hitting me after I had my first son. There was always drinking. It was just part of the fishermen's lifestyle. [ 33 ] Ms. Doolan's own upbringing was dysfunctional and chaotic, as well. There was substance abuse, parental neglect, and emotional and physical abuse.

Alcohol abuse by her father led him to be frequently aggressive, both physically and verbally, such that the children and their mother, Debbie Bisson, would on occasion have to seek shelter in transition homes in order to escape. [ 34 ] There was also sexual trauma. Ms. Doolan reports that she and her older sibling, Jody were sexually abused on multiple occasions by their paternal grandfather, that is, Hubert Doolan. Adding to the cruelty of her circumstances is the fact that in the last months of this grandfather's life, Ms.

Doolan became his caregiver, a task that included changing his diapers, dressing and bathing him. [ 35 ] Ms. Doolan also endured other sexual assaults by non-family members. Her response to these events was always to remain silent. They are obviously difficult experiences for her to talk about even now and, out of a respect for Ms. Doolan's privacy, I do not intend to describe these incidents in detail. They can be found in the Gladue report. [ 36 ] As a young teenager, Ms. Doolan experienced ongoing bullying from her peers.

These experiences, coupled with sexual trauma and the breakdown of her parents' relationship, led to a suicide attempt at age 13. She swallowed a bottle of Tylenol, but immediately changed her mind and made herself vomit. When her parents split up (she was 14), she moved to Terrace with her mother. [ 37 ] It is clear that Ms. Doolan grew up in a home and a community where substance abuse and violence were normal. It is no surprise that she, too, now has substance abuse issues, primarily with alcohol.

At about the age of 14, she began skipping school and consuming alcohol and drugs "to escape her chaotic home life and to gain acceptance by her peers." By the age of 14, she was an alcoholic who drank heavily almost every day. She describes herself as a binge drinker. She would frequently experience blackouts while drinking and, at one time, was suspended from high school for bringing alcohol onto the school property. There were occasions when, as a young teenager, she had to be taken to the “drunk tank”. [ 38 ] Mr. Cadwallader, the Gladue report author, describes Ms.

Doolan's substance abuse as the means by which she would “... self- medicate her sexual victimization and deal with the general chaos and instability in her life.” Although she has in the past attempted counselling to help with her substance abuse issues, she indicates that she could not follow through with the programs. Again, Mr. Cadwallader suggests that her efforts were unsuccessful given that she was simply not dealing with the root cause of the alcohol abuse, namely, her unaddressed sexual traumas. [ 39 ] Ms. Doolan left school in Grade 10 when she was 17.

She has indicated that as a child she loved school, but she obviously had her struggles. It is quite likely that Ms. Doolan found school to be quite difficult for other reasons. The psychological tests in which Ms. Doolan participated in September 2017 yielded the following results: • On the general ability index based on verbal reasoning, concept formation, non-verbal reasoning, visual perception, visual motor coordination, and learning: low average to borderline range above approximately five to 10 percent of her peers; • Working memory and concentration: borderline range above five percent of her peers;

• ability to process simple visual material: average range. In short, in addition to the chaotic and traumatizing nature of her life, including the sexual victimization and mental health issues that I will discuss later, Ms. Doolan struggles with cognitive deficits. [ 40 ] Upon leaving school, Ms. Doolan was in a four-year relationship with a young man that resulted in the birth of her elder son, Jayden. This relationship and several subsequent relationships ended due to domestic violence problems, infidelity, and substance abuse issues. [ 41 ] Ms. Doolan is now 30 years old.

She has been in a common law relationship with Dakota Poitras for two-and-a-half years. They have a child together, Riley, who is now 17 months old. They live in a Gastown-area condominium that they share with Dakota's mother, Ms. Bernie Williams-Poitras. Ms. Williams-Poitras owns the condo. Ms. Doolan's elder son, Jayden, aged nine, currently lives with her mother in Terrace where he moved following the offence that is now before the court. [ 42 ] To her credit, Ms. Doolan reports that she abstained from alcohol and other illegal substances including alcohol through both of her pregnancies.

Following the birth of her second son, Riley, she also quit smoking. She reports that she has not used any drugs or alcohol since the imposition of the bail order with the exception of occasionally taking a puff on her partner's cigarette. There is no reason to doubt her assertion. [ 43 ] Ms. Doolan has a sparse employment history in a variety of service-type jobs. Most recently, she obtained work as a cashier at Nester's Market on the evening shift. She found it difficult to get home before the curfew time in her bail order.

Quite appropriately, she applied to the court for a variation of the bail order and the curfew time was extended to 10:30 p.m. Unfortunately, she lost this job. She believes that this was due to the public notoriety that the manslaughter charge attracted. She is now back on social assistance. [ 44 ] As for her physical health, Ms. Doolan suffers from ankylosing spondylitis, an hereditary condition that results in a type of arthritis in which there is long-term inflammation of the joints of the spine.

Ultimately, it may result in the joints of the spine fusing on their own, a condition which would be accompanied by long-term pain. She tries to keep physically active in order to maintain her current range of motion and to alleviate the ongoing pain in her lower back. When the disease does flare up, she is required to go onto a treatment of Prednisone in order to deal with the inflammation and the fatigue that is associated with the illness. Criminal Record [ 45 ] Ms. Doolan has no criminal record and no prior court history.

She has apparently been involved in a number of incidents to which the police responded, but following which no charges were filed. See the assessment report of Dr. Meldrum wherein she states police records indicate that on August 1st, 2014, Ms. Doolan was involved in a consensual fight with another woman on the street in East Vancouver while intoxicated. No charges were filed. Police were also contacted regarding a verbal altercation which she had with her common law spouse. No charges were filed.

She was the subject of complaints in April 2016 associated with non-payment of a taxi, although this was also resolved without charges. Defence counsel is quite correct, I do not really have details to flesh out what these incidents are about, but in my view, they do not and cannot lead me to the conclusion that this woman is especially prone to engaging in assaultive behaviour of a criminal nature. [ 46 ] Ms. Doolan has been on bail since October 14th, 2016.

The terms include reporting to a bail supervisor, strict travel limitations, a residency requirement, a prohibition against the consumption of alcohol or illegal substances, and a curfew which, after the extension that was granted in June 2017, is 10:30 p.m. to 6:00 a.m. seven days a week. She has abided by the terms of her bail order without incident and took the necessary steps to obtain a legal variation of the curfew when that became necessary. Mental Health History [ 47 ] Ms. Doolan has a history of depression that first surfaced approximately four years ago.

Over the years, she has had several depressive episodes and has been on and off medication prescribed by her GP. [ 48 ] In June 2016, on her own initiative, she went to and was seen by Dr. Valentina Mendoza at the Reproductive Mental Health Clinic at St. Paul's Hospital. This first visit occurred approximately two months before her involvement in the offence before the court and indeed before the birth of her second child. She was 30 weeks pregnant. At that time, she was diagnosed with recurrent major depressive disorder and unspecified anxiety disorder.

She was referred to counselling and to Family Services of Greater Vancouver. She was seen by Dr. Mendoza three more times in in 2016 and twice more in 2017. [ 49 ] On September 13th, 2017, Ms. Doolan met with Dr. Meldrum for the purpose of preparation of the court-ordered psychiatric assessment for this case. By this time, she had been weaned off all regular psychiatric medications by her former doctors. At page 10 of the report, Dr.

Meldrum notes: There is a strong family history of substance abuse disorders and her father was a residential school survivor with an alcohol use disorder who regularly abused her mother in front of the children. She and her sister were also sexually abused in their early childhood by the paternal grandfather. She began abusing substances in her early teens. These factors may have exacerbated her ongoing difficulties with depression and affective dysregulation and contributed to her tendency to react aggressively when she feels threatened.

This tendency was exacerbated by early substance use and her intellectual abilities which may have made it more difficult for her to problem-solve and resolve interpersonal difficulties without violence. It may also limit her ability to recognize patterns in her behaviour and gain insight into her psychiatric and substance use problems. [ 50 ] With respect to the abuse of alcohol, Ms. Doolan candidly advised Dr.

Meldrum that: “Throughout her life, her alcohol use has been associated with involvement in physical altercations and she would frequently fight while intoxicated.” [ 51 ] At page 10 of the report, the doctor notes:

Although Ms. Doolan has a significant history of alcohol use disorder marked by reoccurring physical altercations and interpersonal conflict, she seems to have a limited appreciation of the role of alcohol in these events or in her life in general or in the index offence, in particular. While she has considered seeking addiction counselling and encouraged her partner to do so, she has never taken any steps to do so herself. [ 52 ] With respect to her intellectual challenges, Dr. Meldrum also noted at page 10: Ms. Doolan has an IQ in the low average to borderline range which is at odds with her self-presentation.

Given her deficits in verbal and perceptual reasoning and working memory, it is possible that she may struggle to understand and learn information at the same rate as others and have difficulty with problem-solving and planning. As she presents as being relatively bright, it is possible that her lack of understanding may be overlooked and this may pose a barrier to accessing support or following treatment plans. [ 53 ] Under the heading of "Risk Assessment" at page 11, Dr.

Meldrum states: At this time, her insight is generally fair, although she continues to lack insight into the significant role that alcohol played in the index offence. She has little insight into the destabilizing and disinhibiting effect that it has on her life. However, she does report that she regrets drinking on the night of the index offence. She has limited insight into the need for treatment for her alcohol use disorder. She has not presented with any recent violent ideation or intent. She is quite remorseful for the events and generally wishes to take responsibility for them.

She is experiencing some ongoing symptoms of depression in the context of the stress associated with the current charge and conviction. At this point, she is relatively stable, although she is at risk of decompensation should her stressors increase or should she relapse into alcohol use. There have been no recent concerns regarding treatment or supervision response. It is likely that in the future Ms. Doolan may have difficulties with professional services and plans due to her low average to borderline intellectual function and subsequent lack of insight into her need for treatment.

However, she does have a relatively stable living situation with her partner, Dakota, and children and is well supported by them and her mother. She would likely be at moderate risk for violently recidivating in the context of alcohol use. However, this risk would significantly decrease should she maintain abstinence from alcohol or, ideally, engage in substance use treatment programs. It is probable that with the appropriate support she could successfully engage in treatment and comply with aspects of any community supervision orders that may be in place. Reference Letters [ 54 ] Ms.

Doolan does, in fact, have a great deal of community support. She was raised within her aboriginal culture and her connection to the Indigenous community has continued with the urban aboriginal population and the Nisga'a Ts'amiks Vancouver Society that provides social, economic, and health services to their citizens who live in the Lower Mainland. She contributes to that community through volunteer work.

At page 12 of the Gladue report: Through her mother-in-law, Bernie Williams-Poitras, Samantha continues to be involved with the Pacific Association of First Nations Women and volunteers her time at the Vancouver Battered Women's Centre and the Sacred Circle Community Centre for At-Risk Women. Samantha explained at the time that she was invested in making drums, moccasins, beading, and, more recently, a cedar weaving program which were traditional therapeutic forms of cultural healing and that by sharing this experience with other Aboriginal women, she benefitted from their support, guidance, and teaching.

This perspective was shared by a Musqueam traditional healer, Audrey Seagull, who continues to provide Samantha with traditional medicines, guidance, and mentorship. It is notable that both Bernie and Audrey work with the National Inquiry into Missing and Murdered Indigenous Women and Girls. [ 55 ] Many of letters of support have been filed on behalf of Ms. Doolan. They include letters from family members, including her common law partner, Dakota; her father; her brother, Travis; her mother, Debbie Bisson; and Bernie Williams-Poitras, the mother of Dakota and grandmother to Riley. These letters all attest to Ms.

Doolan's general character as these people know her: a caring person, a volunteer in the community, a loving big sister, and a superb parent who is closely bonded to her young children. [ 56 ] I will refer in particular to the letter from Ms. Williams-Poitras who shares her home with Ms. Doolan, Dakota, and the two boys, Riley and Jayden. Ms. Williams-Poitras is a hereditary chief for two of the villages in Old Massett on Haida Gwaii.

She is also on the board of the Downtown Eastside Women's Shelter, the founder of the Sacred Circle Society, and the only woman to have apprenticed as a master carver under Bill Reid. She is grandmother to Michèle Audette, one of the four commissioners on the National Inquiry for the Indigenous Murdered and Missing Women and Girls. [ 57 ] She notes that Ms. Doolan has assisted her along with other carvers on her "survivors' totem pole." She has also observed Ms. Doolan handing out sandwiches, stews, et cetera, and jackets and socks to the homeless around the community. She describes Ms.

Doolan as "a caring and compassionate person." She has observed the way Ms. Doolan is caring for and raising her children including wee Riley, taking him to swimming lessons, reading to them, teaching them sign language and cultural practices. She states: “She is a great mother. I have absolutely no worries about my grandson.” [ 58 ] The various references to Ms.

Doolan’s talents as a ‘great mother’ are of interest to me because it indicates that she is managing to escape her past and break away from the habits that entrapped her own mother and grandmother, in particular the inability to properly parent young children. Notwithstanding that history in her life, this is an aspect of her existence that she is obviously working very hard on, with a notable degree of success. [ 59 ] Ms. Doolan's own mother writes that her daughter is "the person everyone loves and goes to for help." She, too, praises Ms. Doolan's talents as a mother. [ 60 ] There are letters from friends.

Sheena Watts (a childhood friend from elementary school) writes: She is an amazing mother and spouse, always has her children's needs before her own. She actually puts everyone's needs before her own. It is how Sammy has been for as long as I have known her.

There are other letters from friends that have been filed which are to the same effect: Ashley Newman, Terry Wing, Shaniece Angus, and Kimberly Azaki. In her letter, Ms. Angus notes that she met Samantha in the summer of 2014. They became roommates and she writes: Always caring, looking out for me, becoming someone I can call my big sister. Whenever I needed support, a place to sleep a few hours between jobs. She would also assure I am fed along with even packing me lunch. She has always been there when I need a shoulder to cry on, to listen, and help me through the years.

Now, first off, Sammy is a great loving mother. She has always put her kids first no matter the situation. She has always ensured that the kids were always fed, with their cupboards always full, and always opening her kitchen to others ensuring everyone is always fed. When she had leftovers, she would always go walk in the Downtown Eastside giving out the rest she had from her meal to those on the street. [ 61 ] I also have a letter from Susan Giles, a counsellor with Stewart and Associates Counselling Service, who has written to confirm Ms. Doolan's participation in her counselling program.

She notes that she has been seeing Ms. Doolan since May of 2017 (10 one-hour therapy sessions) that focused on helping her cope better with severe anxiety, stress, and low mood. She states: In session, Ms. Doolan has processed acute anxiety and overwhelming feelings of regret, shame, sadness, and loss related to the tragic events of the night of her arrest. She has come to a place of acceptance that she must face punishment for her actions and she intends to face these consequences as positively and as resiliently as she is able. [ 62 ] She concludes: I find Ms.

Doolan to be a remarkably resilient and giving individual given the past pain and trauma she has experienced in her life. She is ready to account for the harm she has caused and is committed to facing the future in the healthiest way she can for herself and her family. (Emphasis added) [ 63 ] Similar comments have been made by others who know Ms.

Doolan and who have been able, over the past months, to observe her sense of guilt, her acceptance of responsibility, and the degree of remorse that she has been displaying regarding the events in question. [ 64 ] In her letter, Diana Day, programs manager for the Pacific Association of First Nations Women, confirms that Ms. Doolan is a participant in the program. The program itself provides cultural programming activities for Indigenous women in the Vancouver area. She, too, notes, “I believe this incident is a one-time occurrence for Ms.

Doolan and that she is very remorseful.” [ 65 ] Summer Rain is the manager of the Indigenous Women's and Transition Program. She provides services to the Battered Women Support Service, to self-identified women who have experienced violence. She has worked as a victim services worker. She has written on behalf of Ms. Doolan and in support of her stating: Samantha is a promising bright young Indigenous woman who has been accessing our Indigenous Women's Programming since June 2017. She will be taking

part in our Healing Ourselves Heal Our Communities Program which runs through 2018. That latter plan is not going to work out, obviously, for Ms. Doolan. [ 66 ] There is also, finally, a letter from Calvin Wong, executive director of the National Inquiry Into Missing and Murdered Indigenous Women and Girls. He is writing on behalf of Ms. Doolan.

He states she has been volunteering with the National Inquiry since March of 2017: She has been engaged in the frontlines with the family members preparing them to share their story and will also be training to do statement-gathering for the upcoming Vancouver Community Hearing in March 2018. Samantha has been a tremendous asset to our work, especially supporting the role of Bernie Williams-Poitras.

Once again, Samantha Doolan is not going to be able to work on that project in March of 2018, but this letter does confirm her contribution to the community through volunteer hours. [ 67 ] I now turn to the Gladue report. This report was prepared by Mr. Cadwallader. It contains a thorough personal history relating to Ms. Doolan and her family. Much of that has already been mentioned above. It also contains an outline of the rather sordid history behind the Nisga'a First Nation and the decimation of its people. [ 68 ] Finally, there is a

summary of the Canadian Government policy behind the Indian residential school system beginning in 1857 with the Gradual Civilization Act that was designed to assimilate the Indians and "to take the Indian out of Her Majesty's red children." The survivors of the Indian residential schools that were set up through this program have, of course, been speaking out about the sexual abuse, sterilization, and countless tragic circumstances that they had to endure in these schools. At page 12, Mr.

Cadwallader notes: Samantha's paternal grandfather and many of her extended family members and community of support attended St. Michael's as children. According to Samantha's father, when the paternal grandfather, Hubert, eventually ran away from his second Indian residential school, "He brought the violence home," and the resulting fallout and sexual victimization continues to be an unspoken and lasting intergenerational legacy of this experience as it echoed in the lives of Monty Doolan and his children including Samantha. [ 69 ] The author describes Ms.

Doolan at page 13: Samantha is an intergenerational survivor of the Indian residential school system. This shared legacy includes being raised in homes where they were exposed to alcohol and violence at an early age, experienced parental alienation, maladaptive parenting capacity, familial fragmentation and breakdown, and sexual victimization with consequent negative impact on their overall health and functioning

as adults. [ 70 ] At page 14, there is a passage wherein the author outlines the number of adverse factors that affect Aboriginals in general, but which are, in fact, present in Samantha Doolan's personal life: multigenerational substance abuse, familial fragmentation, dislocation and breakdown, early exposure to violence by family members, early introduction to and a subsequent chronic personal history of substance abuse, sexual victimization as a child by family, peers, and by strangers. “In her teens, Samantha began using alcohol and illicit substances as a means to self-medicate and numb the emotional traumas of her physical and sexual abuse, depression, alienation, and feelings of grief and loss.

While she has enjoyed periods of sustained sobriety, she has continued to engage in a lifelong chronic pattern of relapse during periods of emotional turmoil or stress.

Consistent with unaddressed trauma, lack of self-worth, addiction, and lifestyle, Samantha has engaged in a series of co-dependent and often abusive relationships with others who struggle with addiction, violence and criminality, low educational achievement, and vocational instability.” [ 71 ] Finally: Intergenerational effects flowing from the imposition of the Indian Act and Indian residential school system are reflected in a legacy defined by substance abuse, interpersonal communication deficits, maladaptive parenting capacity, familial fragmentation and breakdown, with consequent negative impact on successive generations' overall health and functioning as adults.

In his report, Mr. Cadwallader has included information about various trade schools and other services available to assist Aboriginal people find employment (see page 8), and the resources available to Aboriginal persons both on an in-custody basis and an out-of- custody basis. The availability of such resources that may assist in a successful rehabilitation of this offender must be considered when determining what a fit and just sentence would be in this case. Remorse [ 72 ] The Crown has questioned whether Ms. Doolan is, in fact, remorseful and whether she has truly accepted responsibility for her actions.

He has referred to passages in the presentence report where it is noted that Ms. Doolan wonders why Ms. McLellan would fight if she had a "disease of the blood vessels" (pp. 6 and 7), and in the psychiatric report wherein it is noted that Ms. Doolan appears to believe that Ms. McLellan passed away because of this disease (p. 3). In my view, we ought not to be overly analytical when interpreting Ms. Doolan's comments. The stress that Ms.

Doolan was and is under as she faces sentencing for this offence, her personal struggle to understand why she did what she did, and her intellectual limitations must all be taken into account when trying to discern the message that she was trying to get across to others. We also cannot ignore the other comments that she has made to the probation officer and to friends and professionals in the community. To the probation officer, she has stated, "that every day she lives with guilt." See also the following passage from the psychiatric report that immediately follows Ms.

Doolan's comment about the complainant's disease (p. 3): However, she says she did see the video of her kicking Ms. McLellan and does generally agree with the charge and feels that it is important for her to take responsibility for the events of that evening. And at page 11 of the same report: “She is quite remorseful for the events and generally wishes to take responsibility for them.” [ 73 ] See also the report of Dr. Mendoza from October 19th, 2016. This was written just one week after Ms. Doolan was formally charged with manslaughter and released on bail. In the first paragraph of Dr.

Mendoza's report, she outlines what Ms. Doolan said about the assault on Ms. McLellan: Samantha has played the events of the assault over and over in her head. She states, "I punched her four times. I didn't stomp her to death," and that, "The press made me look like a monster" She is tearful when she speaks of this. She describes feeling a sense of guilt and remorse and states that she cannot stop thinking about the victim and the victim's parents and she is very tearful when describing this. So it would seem that very early on in these proceedings, Ms.

Doolan was indeed displaying the type of remorse that we look for in an offender. Her thoughts in this comment to the doctor were not about herself or her own family. They were about Ms. McLellan and Ms. McLellan's parents. [ 74 ] Finally, there is a letter of apology that Ms. Doolan has written to Mr. and Mrs. McLellan wherein she tries to explain "how truly and deeply sorry" she is. She writes: I do not want another day to pass without trying to express to you and your family the remorse and regret that overtakes my heart and invades my mind every single day.

The Law [ 75 ] In determining the appropriate sentence in this case, I must be guided by the sentencing principles set out in s. 718 to 718.2 of the Criminal Code .

Section 718 defines the fundamental purpose of sentencing, that being to contribute to respect for the law and maintenance of a just, peaceful, and safe society by imposing a just sanction that has as its objectives denunciation, specific and general deterrence, the protection of society, rehabilitation, reparations for the harm done, and promotion of a sense of responsibility in the offender.

[76] The fundamental principle of sentencing is set out in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Speaking for the majority in R. v. Ipeelee, 2012 SCC 13, LeBel J confirmed the primacy of the ‘proportionality’ principle in thesentencing process. At para. 37: 37. The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity ofthe offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. ... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [77] Application of this principle in a manslaughter case can be challenging. See the following observations in R. v. Pop, 2013BCCA 160, at para. 22: The offence of manslaughter carries no minimum sentence: thus the overall range of sentence is from a suspended sentence to lifeimprisonment.

Manslaughter is an offence that can encompass very different factual matrixes: from near accident to near murder. Thisexplains why there is such a wide variance in the range. As Chief Justice McEachern said in R. v. Fujimori (1995), (BC CA), 66 B.C.A.C. 214 at para. 10 ... “[I]t is often useful to distinguish between cases where a death is caused by foolishmisadventure as opposed to deliberate criminal activity.” [78] See also R. v. Abel, [2017] N.W.T.J. No. 21: 52. What manslaughter means is causing someone's death by an unlawful act.

That unlawful act could be a very minor assault thatcauses someone to fall and hit their head and die. It could be a single hit that causes a fatal injury. It could involve a weapon or notinvolve a weapon. Basically it covers situations all the way from near accident to near murder, and that is why there is such a widerange of sentences that can be imposed for it. 53. The more dangerous the actions of the person who caused the death, the more blameworthy it is and the more the sentence has toreflect that. [79]

Section 718.2 of the Criminal Code requires me to consider a number of additional factors, when relevant, includingaggravating and mitigating circumstances that might affect the sentence. The principle of parity in the sentencing process must also beconsidered. See

section 718.2(

b) which dictates: ... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ... [80] The provisions set out in s. 718.2(

d) and (

e) are of particular importance in the present case. The former states: ... an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances ... The latter

section states: ... all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victimsor to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [81] The final words of the above ss. 218.2(

e) have been the subject of a great deal of legal debate and decisions abound as to what itmeans and how the principle is to be applied. In Ipeelee, supra, LeBel J discussed the sentencing process as it relates to Aboriginaloffenders with particular reference, of course, to this subsection of the Code. At para. 59: 59. . . . It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis indetermining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to thecircumstances 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 factorswhich may have played a

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

b) the types of sentencing proceduresand sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage orconnection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginalpeople generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, atparas. 83-84). [82] See also the guidance that is offered in the following paragraphs in Ipeelee: 66.

First, sentencing judges can endeavour to reduce crime rates in Aboriginal communities by imposing sentences that effectivelydeter criminality and rehabilitate offenders. These are codified objectives of sentencing. To the extent that current sentencing practicesdo not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities.

AsProfessors Rudin and Roach ask, “[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or heractions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other

people who commit the same offence go to jail?” (J. Rudin and K. Roach, "Broken Promises: A Response to Stenning and Roberts''Empty Promises'" (2002), 65 Sask. L. Rev. 3, at p. 20). . . .

Section 718.2(

e) is therefore properly seen as a “direction to members of the judiciary to inquire into the causes of the problemand to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process” (Gladue, at para. 64 (emphasisadded)). . . . [83] The offender’s Aboriginal background may well have an important role to play when assessing the degree of moral culpabilitythat the offender bears for the offence. See para. 73 of Ipeelee: 73.

First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the uniquesystemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender's conduct"(Wells, at para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntaryconduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities andlimited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actionswere not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability.

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

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

In many instances, more restorative sentencing principles will gain primary relevanceprecisely because the prevention of crime as well as individual and social healing cannot occur through other means. [84] Before moving on, I will pause to note that the court in Ipeelee also clarified a passage in the earlier decision of R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, at paragraph 79 to the effect that: Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. At paragraph 84 of Ipeelee, the court notes: “Numerous courts have erroneously interpreted this generalization as an indication that theGladue principles do not apply to serious offences ...”. See para 85 of Ipeelee: 85.

Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makesit clear, at para. 82, that sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the uniquesituation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence” ...

Similarly, inWells, Iacobucci J. reiterated, at para. 50, that: ... [t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matterfor similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universalapplication. In each case, the sentencing judge must look to the circumstances of the aboriginal offender. Sentencing Positions of Counsel Before Me [85] The Crown is seeking a four-and-a-half-year prison sentence.

The defence is seeking a jail sentence of one year or up to twoyears less a day plus a three-year probation order. [86] I have been referred to a number of authorities with respect to what might be an appropriate sentencing range including: Abel,supra; Pop, supra; R. v. Fujimori, [1995] B.C.J. No. 2648; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Cascisa,2001 MBCA 168; R. v. Vallee, 2012 BCPC 167 , 2012 BCPC 0167.

I have reviewed these authorities and, while they do helpme in terms of a general range of sentence that might apply in this case, the circumstances of the offences and the circumstances of theoffenders in those cases were very different from the events before me and the particular circumstances of this offender. Hence, I havefound them of limited assistance in determining the appropriate sentence in this case. Analysis [87] The offence before me was clearly a serious one. A young woman has lost her life in a senseless incident.

The offence itselfneeds to be properly characterized in order to assess how serious it is. Defence counsel has tended to focus on the kick to the head as thegravamen of the offence. I disagree with this approach. The offence began when Ms. Doolan left the bar in pursuit of Ms. McLellanwith a clear criminal intent to assault her. That assault began when she pushed or punched Ms. McLellan to the ground and thenrepeatedly punched her in the head. Ms. Doolan shook off attempts by a civilian to pull her off the victim. She pressed ahead with herassault.

She then resisted the doorman's attempts to pull her away from the victim. Instead, she took one last step towards the victimand kicked her in the head. Only then did the assault stop. [88] This 25-second assault was criminal in nature and encompassed more than the kick to the head. It was no near accident orfoolish misadventure. This makes the offence a more serious one of its kind, and, in my view, there are no factors that would mitigate

the gravity of the offence. It is this perspective that leads the Crown to ask for a four-and-a-half-year jail sentence. [ 89 ] The moral culpability of the accused, Ms. Doolan, is a much more complex issue. I am satisfied that the personal circumstances of this Aboriginal offender, as outlined in the prior paragraphs, are so egregious and challenging as to mitigate her moral culpability to a significant degree. The effects of her Aboriginal history on her life are not theoretical in this case. The many adverse historical factors that affect Aboriginals in general are a reality in her situation. Again, I refer back to page 14 of the Gladue report and the author's

summary of the immediate impact of those factors on Ms. Doolan personally including, but not limited to, family members who are residential school survivors, multigenerational substance abuse, early exposure to family violence, and sexual victimization. [ 90 ] An additional circumstance serving to mitigate her moral culpability is her very real intellectual limitations which the psychiatrist, Dr.

Meldrum, has noted would impair her ability to properly reason her way out of a contentious situation. [ 91 ] It is these factors that defence relies upon when asking for a provincial jail sentence of less than two years. Aggravating and Mitigating Circumstances [ 92 ] The aggravating features related to the assault itself have already been discussed. With respect to Ms. Doolan herself, the Crown points to her lack of insight into her alcohol addiction and underlying anger issues and her limited insight into her need for treatment.

This is a fair observation given her own acknowledgment that when drunk she tends to become physically combative. It is clear that there is a need for intensive and ongoing counselling so that Ms. Doolan can begin to comprehend what her past has been and how it is driving her current conduct. [ 93 ] A further aggravating factor, in my view, is that Ms. Doolan showed a callous disregard for the harm that she caused to Ms.

McLellan when she quickly walked away from the scene of the assault without any thought whatsoever to the fact that she may have injured her victim. [ 94 ] There are a number of mitigating circumstances to be considered: 1. Ms. Doolan is the mother of two young boys, one of whom is just 17 months old. She is described by all as an excellent mother who is well bonded with her children, notwithstanding the lack of good parenting during her own childhood. A jail sentence will separate her from her young children for a lengthy period of time and this itself is a tragedy. 2.

While she may have limited insight into the deleterious effects of alcohol in her life and the need for counselling to address this issue, Ms. Doolan has been successful in abstaining from alcohol for over a year on her own initiative. 3. Ms. Doolan has no criminal record for assaultive conduct or any type of criminal conduct. Given the abusive and dysfunctional home environment in which she was raised, this is, in my view, a very significant accomplishment on her part.

I also note that she has successfully abided by the terms of the October 2016 bail order including the curfew and the requirement that she abstain from consuming illegal substances or alcohol. 4. She has enormous support from her family and from the community at large as evidenced by the reference letters. 5. She participates fully in the urban Indigenous community in Vancouver and is known for her volunteer work in the community. 6. She has mental health issues arising at least in part from her tumultuous upbringing including being sexually victimized by family members and others.

It is worth noting that even before involvement in this index offence, Ms. Doolan did seek the help of a psychiatrist on her own initiative. She has had some success in dealing with her depression issues. In her diagnosis, Dr. Meldrum notes that her "major depressive disorder, recurrent moderate severity, is at least in partial remission." She also voluntarily undertook counselling with a registered clinical counsellor, Susan Giles, from May 2017 until October 2017.

There were 10 sessions which stopped only because this was the maximum number of sessions that would be funded by the Nisga'a Valley Health Authority. 7. Notwithstanding protests from the Crown, I am satisfied that Ms. Doolan is honestly remorseful for her actions and, at this point, accepts full responsibility for what occurred on the night of August 11th, 2016. At no point during this proceeding has she tried to blame anyone else for her actions. In particular, there has been no suggestion in defence counsel's submissions that Ms. Doolan was in any way provoked by either the victim or anyone else. 8.

As to her risk for reoffending, I again note the remarks of Dr. Meldrum at page 11 of her report: She would likely be at moderate risk for violently recidivating in the context of alcohol use. However, this risk would significantly decrease should she maintain abstinence from alcohol or, ideally, engage in substance use treatment programs. It is probable that with the appropriate support she could successfully engage in treatment and comply with aspects of any community supervision orders that may be in place.

Conclusion [ 95 ] I again note that I have reviewed the sentencing authorities and I have found that they do not assist me that much in determining what would be an appropriate and just sanction in this case. In the end, I am satisfied that a four-and-a-half-year sentence, as proposed by the Crown, would be excessive in this particular case. In my view, such a sentence does not give sufficient weight to the reduced level of moral culpability of this offender and her personal circumstances.

On the other hand, the authorities provided simply do not support the defence request for a provincial jail sentence of just one year or something less than two. [ 96 ] Upon a review of those authorities and the principles of sentencing as set out in the Code , the seriousness of the offence before me, the moral culpability of this offender, her personal circumstances both aggravating and mitigating, and the Gladue factors that are clearly present in this case, I have concluded that a three-year jail sentence would be a fit and just sentence.

[ 97 ] However, that is not the end of the matter. Under s. 718.2(

e) of the Code , I am required to examine what other sentencing options might exist that will serve the objectives of the sentencing process and, at the same time, will be just and appropriate for this particular offender. [ 98 ] I am going to go back to Dr. Meldrum's recommendations in the psychiatric assessment as to what might work with this particular offender in terms of supervision in the community.

She does note that further orders for community supervision, if that is the determination of the court, should include terms that require her to be abstinent from all substances and to participate in substance abuse programs, preferably drug treatment programs “with a focus on supporting First Nation clients”. She also recommends that Ms. Doolan receive or have access to counselling for sexual abuse and trauma in a program “that is sensitive to the consequences of residential school abuse and intergenerational trauma”.

Finally, she suggests that this offender, with her consent, should pursue further psychiatric treatment, again, “in a culturally sensitive program”. [ 99 ] After reviewing these considerations and the case law relating to the application of s. 718.2(

e) of the Code , I have concluded that, while a three-year jail sentence would be appropriate, there is a more fit sentence for this Aboriginal offender, which would be a two-year jail sentence in a federal prison followed by a three-year probation order under which Ms. Doolan's behaviour in the community would be closely monitored. [ 100 ] The ultimate effect is that she will be bound by a 5 year order, not a three-year order. There will be two years jail in a federal institution, followed by three years in the community.

In my view, this would be the most effective sanction for this particular offender and for the community as a whole. The objectives of denunciation, general and specific deterrence would be served by such sentence as would the need for protection of the community. Ms. Doolan's rehabilitation could be pursued both in the federal institution and later in the community. [ 101 ] If she breaches the terms of the probation order in the community, the result is inevitable.

She will be arrested and brought back before the court and likely receive a further jail sentence for her breach or breaches should there be more than one. [ 102 ] I am settling upon a federal sentence of two years rather than a provincial sentence of two years less a day because of the paragraphs set out in the Gladue report regarding the services that are available in those two institutions. It would appear from pages 15 and 16 of that report that a jail sentence served in a provincial institution would give Ms.

Doolan access to services that are fairly generic in nature: core programs, educational programs, and vocational programs offered to all inmates. [ 103 ] In contrast, the federal penitentiary system has a new programming structure as noted by Mr. Cadwallader at page 16 of the report: In respect to consideration of a sentence within the federal range, the Correctional Service of Canada began piloting the Integrated Correctional Program in the Pacific Region in January 2010 as an innovative and holistic approach to correctional programs and to enhance public safety.

The ICP [that is, the Integrated Correctional Program] includes an Aboriginal-specific multi-target program to address the needs and risks of this specific offender population in the most effective way possible. Female federal offenders are housed at the Fraser Valley Institution located in Abbotsford. There are three types of living units: 1. residential houses; 2. residential-style living unit; and 3. a direct observation living unit.

As an Aboriginal person sentenced to a federal institution, Samantha would be managed within the context of the Aboriginal Continuum of Care Model which includes access to various Aboriginal programs and services including elders, traditional circles, smudges kits, Aboriginal liaison officers, Aboriginal-specific units, sweat lodge ceremonies, pow wows, and ceremonies. There are also Aboriginal maintenance programs both within the institutions and the community setting. [ 104 ] In my view, the programs offered in the federal system are going to be much more effective in Ms.

Doolan's case than the programs offered within the provincial jail system; hence, I have settled on a two-year federal sentence. [ 105 ] In conclusion, I sentence Ms. Doolan to two years' imprisonment. In addition, there will be a three-year probation order to follow. [ 106 ] The terms of the probation order will be as follows: She is to keep the peace and be of good behaviour.

She is to report to a probation officer at 275 Cordova Street, Vancouver, B.C., or elsewhere as may be directed by a probation officer or a Corrections officer, on the first business day following her release from custody and thereafter as, when, and where directed. She is to reside at an address approved of by her probation officer. She is not to change her residence without the prior written approval of the probation officer.

During the first year of the probation order, she is not to be outside of her residence between the hours of 10:30 p.m. and 6:00 a.m., seven days a week, except during medical emergencies involving herself or her immediate family. She may be outside of the residence during the curfew hours if she is in the company of a person approved of in advance and in writing by the probation officer. She may also be outside of the residence during the curfew hours if she is attending a residential treatment or counselling program that has been arranged by the probation officer.

Upon the attendance of a probation officer, Corrections officer, or police officer at her residence to confirm compliance with the curfew, she is to immediately present herself at the front door of the residence. She is not to consume or possess any alcohol or illicit substances unless she has a lawful prescription for the same. She is not to enter any liquor store or beer or wine store. She is not to enter into any other licensed premise where a person under the age of 19 is not permitted.

She is to perform 75 hours of community work service at the direction of the probation officer. These hours are to be completed within the first nine months of the probation order. Preferably, the community work should involve work within the urban aboriginal community in the downtown of Vancouver. She may devise a community work service plan of her own, but she must obtain the written approval of the probation officer for this plan. Absent such approval, the hours worked under the plan will not count towards the community service obligation.

She is to take such counselling as may be directed by the probation officer including, but not limited to, counselling for substance abuse and anger management and, where possible, such counselling programs should be ones designed for Aboriginal persons. At the direction of the probation officer, she is to take counselling for sexual abuse and trauma, preferably in a program that can offer appropriate cultural and spiritual support and that is sensitive to the consequences of residential school abuse and intergenerational trauma.

At the direction of the probation officer and with her consent, she is to seek psychiatric treatment for her depression and anxiety, preferably, through a program that is culturally appropriate for her. At the direction of the probation officer, she is to apply for entry into and, if accepted, she is to participate in the residential program offered by the Tsow-Tun Le Lum Aboriginal Treatment Centre in Lantzville, B.C.

She is not to possess any firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, or explosive substances, and any related authorizations, licences, and registration certificates during the term of the order. She is not to possess any weapons as defined in the Criminal Code of Canada . [ 107 ] There will be a DNA order.

That is mandatory. [ 108 ] Pursuant to Section 109(2) of the Code , I am prohibiting her from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years following her release from prison; and I am prohibiting her from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 109 ] There is a surcharge. [ 110 ] MS.

BARNES: I think Your Honour can deem it payable by today and order a sentence of imprisonment to be served concurrently in default. [ 111 ] THE COURT: Any objection? [ 112 ] MR. PROULX: I do not. [ 113 ] THE COURT: All right. There is a surcharge of $200 that is payable. I gather your client is saying she does not want time to pay and she is not going to be paying it, not in a position to pay it? So I will instead impose the default time which is two days in jail to be served concurrent with the sentence that I have just imposed. [REASONS FOR SENTENCE CONCLUDED]