R. v. Hilbach, 2019 BCPC 227

Citation: R. v. Hilbach 2019 BCPC 227 Date: 20190909 File No: 25548 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CODY SKYE HILBACH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.D. DOULIS Counsel for the Crown: Feinberg, L. Counsel for the Defendant: Grewal, S. Place of Hearing: Smithers , B.C. Date of Hearing: September 6, 2019 Date of Judgment: September 9, 2019 A Corrigendum was released by the Court on October 3, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction [1] Cody Skye Hilbach is before the Court today having entered a guilty plea to three offences on three different informations. OnInformation 25548-1, he pled guilty to breaking and entering the Kispiox Cultural Centre with the intent to commit an indictable offence,namely theft. The offence is said to have occurred on June 10, 2019, at 1215 Frontage Street, at Kispiox, BC. On Informations 25548-2-A and 25548-4-A, Mr. Hilbach is charged with breaching the curfew condition of his recognizances in August, 2019.

Issues [2] The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principlesof sentencing, the circumstances of the offence and the particular circumstances of Mr. Hilbach. [3] There is no joint submission as to sentencing and the principles espoused in R. v. Anthony-Cook, 2016 SCC 43 , arenot engaged. Circumstances of the Offence Information 25548-1 [4] The Crown read in the circumstances of the offence on the lead information 25548-1, which were amplified somewhat by thedefence.

At approximately 2 a.m. on June 10, 2019, Cody Hilbach repeatedly kicked at the front and back doors of the Kispiox CulturalCentre until the back door eventually gave way. He entered the Centre and made off with its cash register. There was no money in thecash register, nevertheless Mr. Hilbach caused considerable damage to the Centre’s door as well as the loss of its cash register. Mr.Hilbach was readily identified as the perpetrator from the surveillance footage which recorded the break and enter. [5] Mr. Hilbach was arrested on July 31, 2019 on Information 25548-1 and brought before the Court.

I had released him on aRecognizance of Bail on a number of conditions including he: a. keep the peace and be of good behaviour; b. reside with his grandmother, Linda Hilbach, at her residence at [omitted for publication], Hazelton, BC.; c. obey the rules of Linda Hilbach’s residence; and d. abide by a curfew between the hours of 7 p.m. and 7 a.m. except with the written permission of the bail supervisor and formedical emergencies. [6] On June 10, 2019, the date of the break and enter of the Kispiox Cultural Centre as charged under Information 25548-1, Mr.Hilbach was subject to a Probation Order made by Judge Jackson on April 2, 2019, which included the conditions that he: a. keep the peace and be of good behavior; and b. attend, participate in and successfully complete any assessment, counselling, or program as directed by the Youth Worker.Without limiting the general nature of this condition, such assessment, counselling or program may include: alcohol or drug abuse orpsychiatric and psychological health.

Information 25548-2-A [7] By way of Information 25548-2-A, Mr. Hilbach was charged with breaching the curfew conditions on the July 31, 2019Recognizance of Bail. The Crown submits that on August 4, 2019, at 9:20 p.m., a member of the New Hazelton RCMP observedMr. Hilbach walking down Field Street in Hazelton, BC. The officer stopped Mr. Hilbach and asked him why he was outside hisresidence at that time of night. Condition 6 of his July 31, 2019 Recognizance of Bail required Mr. Hilbach to be in his residence from7 p.m. to 7 a.m. Mr. Hilbach claimed he was picking apples. The officer arrested Mr.

Hilbach and released him on a Promise to Appear. Information 25548-3-A [8] Mr. Hilbach did not enter a plea to Information 25548-3-A, however, the Crown provided the defence with notice of itsintention to read in the circumstances of that offence at the sentencing hearing. On August 7, 2019, a member of the local RCMPdetachment observed Mr. Hilbach walking on Highway 16 by the 28 Inn in New Hazelton, BC at 7:37 p.m. The officer arrested Mr.Hilbach for breaching the curfew conditions of his July 31, 2018 Recognizance of Bail. Mr. Hilbach explained his grandmother nolonger wanted him living in her home. Mr.

Hilbach was held in custody. After a contested bail hearing on August 8, 2019, Mr. Hilbachwas released on a new Recognizance of Bail on number of conditions including he: a. Keep the peace and be of good behaviour; b.

Reside with his father Jamie Hilbach at his residence at [omitted for publication] in New Hazelton, BC; c. obey all the rules of his residence; d. obey a curfew by being inside of his residence or on the lot in which it is situated, 24 hours a day 7 days a week, withexceptions for employment, medical emergencies, and each Tuesday and Wednesday of the week between the hours of 11:00 a.m. and1:00 p.m. to attend to personal business. This curfew provision was to remain in force until such time Mr. Hilbach was admitted into a residential treatment facility.

Information 25548-4-A [ 9 ] On August 12, 2019, at 5:47 p.m. the New Hazelton RCMP observed Mr. Hilbach walking on Templeton Street in Hazelton, BC, in breach of his curfew. He was arrested and taken into custody. He has been in custody ever since. He has not sought his judicial interim release. Mr. Hilbach has been in custody 33 actual days and is entitled to presentence credit at the rate of 1.5 for a total for 45 days. Victim Impact Statement [ 10 ] The Kispiox Cultural Centre is a community facility belonging to the Kispiox Indian Band.

The Band was forced to pay $1,067.88 to repair the damage to the Centre’s door and $269.25 to replace its cash register. Specifically, the Kispiox Band costs for the door included: (a) $422 for a new door; (b) $28.90 for a new passage; (c) $54.58 for a new deadbolt; (d) $360 for labour; and (e) $ 202.40 for the labourer’s mileage. [ 11 ] The Kispiox Cultural Centre had to close for four days until the door was prepared.

The Kispiox Band was still required to pay the Centre’s employees a total of $1,200 in wages during this period. [ 12 ] The Kispiox Band is seeking a stand alone restitution order in the amount of $1,337.13. Circumstances of the Offender [ 13 ] Cody Hilbach is 18 years old. He will be 19 on November 12, 2019. He is a member of the Gitanmaax Band of the Gitxsan First Nations. Mr. Hilbach’s circumstances are set out in the following exhibits: Exhibit 1: Mr.

Hilbach’s Justin Conviction List as of August 20, 2019; Exhibit 2: Psychosocial Assessment report prepared by Katrina Ludwig, Psychiatric Social Worker of Youth Forensic Psychiatric Services, on January 21, 2014, and updated by Ezra Teitel, Contract Counsellor, on November 14, 2018; Exhibit 3: Psychiatric Report dated November 23, 2018, prepared by Dr.

David Morgan of the Inpatient Assessment Unit of Youth Forensic Psychiatric Services; and Exhibit 4: Gladue Pre-Sentence Report prepared by Theresa Forsythe, Youth Worker for the Ministry of Children and Family Development on January 21, 2019. [ 14 ] Exhibits 2, 3, and 4 had been ordered by the Court with respect to Mr. Hilbach’s youth files 3657-1, 2594-2-C, and 2568-3-BC. On April 2, 2019, in Hazelton Provincial Court, Judge Jackson sentenced Mr. Hilbach after guilty pleas as follows: a. Information 3657-1, Count 1: Mr.

Hilbach was convicted after a guilty plea to break and entry and commit an indictable offence contrary to s. 348(1) (

b) of the Criminal Code . He was charged with a break and enter of the Kitsumkalum Tempo Gas Bar located at 14309 Highway 16 West in Terrace, BC. The offence occurred at 1:08 a.m. on October 22, 2016. Mr. Hilbach and his co-accused gained entry to the building by smashing the door with a large rock. Mr. Hilbach was sentenced to 60 days jail, time served, followed by a six month probation order. The 60 days jail was to be served consecutive to the sentence imposed on Information 2594-2-C. b. Information 2594-2-C, Count 1: Mr. Hilbach was convicted after a guilty plea to break and entry and commit an indictable offence contrary to s. 348(1) (

b) of the Criminal Code . Mr. Hilbach was charged with breaking into the Visitor’s Centre at the intersection of Highway 16 and Highway 62 in New Hazelton, BC on June 15, 2018. He gained access by breaking the front window and made off with a collection of jewellery and sunglasses. Mr. Hilbach was sentenced to 90 days jail, time served, followed by a six month probation order. The 90 days jail was to be served consecutive to the sentence imposed on Information 3657-1; c. Information 2594-2-C, Count 2: Mr. Hilbach was convicted after a guilty plea to possession of stolen property of a value not in excess of $5,000 contrary to s. 255 (

b) of the Criminal Code . The property was the jewellery and sunglasses he stole from the Visitor’s Centre on June 15, 2018. He was sentenced to 30 days jail, time served, followed by a six month probation order. The 30 days jail was to be served consecutive to the sentence imposed on Information 3657-1 and concurrent to Count 1 on Information 2594-2-C. d. Information 2568-3-BC: Mr. Hilbach was convicted after a guilty plea to failing to comply with a sentence, contrary to s. 137 of the Youth Criminal Justice Act .

He was sentenced to 30 days jail, time served, concurrent with Information 2594-2-C and consecutive to Information 3657-1. [ 15 ] On Informations 3657-1, 2594-2-C, and 2568-3-BC, Mr. Hilbach spent 160 days of actual time in pre-sentence custody and was entitled to 240 days with enhanced credit. He was ultimately sentenced to 150 days total on all three Informations, which meant that he had 90 days of “dead time.” As in this case, Mr. Hilbach never sought his judicial interim release and although a young person, remained in custody from June 15 to November 21, 2018. [ 16 ] Mr.

Hilbach’s troubled life began before he was born. He suffers from Partial Fetal Alcohol Spectrum disorder as a result of prenatal exposure to alcohol. He was the second of six children. His parents were addicted to drugs and alcohol with the result that Mr. Hilbach’s childhood was marred by poverty, neglect, instability, and dysfunction. Mr. Hilbach’s Criminal Record [ 17 ] Mr. Hilbach has a Criminal Record which begins with eight convictions, two for break and entry, one for mischief, and five for breaches of undertakings or recognizances.

The convictions were entered on April 1, 2014, for offences which occurred in Hazelton, BC in 2013. As Mr Hilbach was born on November 12, 2000, he would have been 12 years old at the time of the offences and 13 when convicted. Mr. Hilbach’s offending proceeded more or less unabated since his first conviction. His criminal record shows he has four

previous convictions for break and entry, one for theft under $5,000, three for mischief, two for possession of stolen property, and 37 for breaches of court orders. [ 18 ] Mr. Hilbach has now entered guilty pleas to one count of breaking into and entering the Kitimat Cultural Centre and to two counts of breaching his recognizance of bail by failing to abide by his curfew. This is his fifth conviction for break and entry – the third within 2.5 months. His conviction on the breaches of recognizance which occurred on August 4 and 12, 2019, will be his 38 th and 39 th conviction for breaching a court order.

Pre-Sentence reports Social History [ 19 ] Mr. Hilbach spent much of his youth in the care of his paternal grandmother, Linda Hilbach, as were his siblings. The Ministry of Child and Family Development supported Linda Hilbach’s parenting of her grandchildren through an Extended Family Program agreement. Mr. Hilbach’s mother, Cecilia Mowatt, died from a drug overdose in Vancouver on October 25, 2013, when she was only 36 years old. Mr. Hilbach’s father, Jamie Hilbach, also was addicted to street drugs and has his own criminogenic history.

After his mother’s death, Cody Hilbach lived primarily with Linda Hilbach. [ 20 ] In his Psychiatric Report [Exhibit 3], Dr. Morgan indicates (on 6), Mr. Hilbach and his siblings were “raised in a dysfunctional and chaotic environment, and were neglected and emotionally abused.” Medical issues [ 21 ] Mr. Hilbach has a number of physiological, psychological and developmental issues. Medically, he suffers from a heart condition known as Long QT syndrome (LQTS) a condition characterized by an irregular heartbeat which can lead to fainting, seizure, and sudden death. Mr.

Hilbach is prescribed Nadolol for this condition, which he takes inconsistently. [ 22 ] Pursuant to s. 34 of the Youth Criminal Justice Act , Mr. Hilbach participated in a psychosocial assessment on January 17, 2014, with Dr. Michael Stefanelli and a psychological assessment by Dr. Fuhr on January 21, 2014. In April 2014, Mr. Hilbach was assessed by the Northern Health, Complex Developmental Behaviour Centre, and diagnosed as suffering from a number of developmental disorders, including Partial Fetal Alcohol Syndrome and Attention Deficit Hyperactivity Disorder. [ 23 ] In November 2018, Mr.

Hilbach participated in an inpatient Youth Forensic Psychiatric Assessment pursuant to s. 34 of the Youth Criminal Justice Act . This included a comprehensive psychological assessment by Dr. Su, a psychiatric assessment by Dr. David Morgan and a psychosocial assessment from Ezra Teitel. In his November 23, 2018 report (Exhibit 3) Dr. Morgan opined that Mr. Hilbach satisfied the DSM – 5 diagnostic criteria for: (

a) conduct disorder, childhood onset; (

b) stimulate use disorder, severe; (

c) alcohol use disorder, mild to moderate; (

d) cannabis use disorder, moderate. Dr. Morgan sets out his clinical impression on page 11: [45] Mr. Hilbach is a young man who may have been exposed to intoxicants prenatally and who was raised in a chaotic environment fret with substance use, domestic violence and neglect. He tragically lost his mother at a very young age. It appears to me that he has since struggled with rejection, abandonment and trust, and in trying to moderate his emotional distress uses alcohol and drugs.

His substance use escalated over time such that he became physiologically dependent on stimulants, and in order to fund this, his acquisitive offending escalated markedly over time. Education [ 24 ] Mr. Hilbach has only Grade 4 formal education. In April 2012 Mr. Hilbach was suspended from John Field Elementary School indefinitely for abusive language, aggressive behaviour, and vandalism. He did not attend school between 2012 and 2016. In 2016 he attended the Stekyoden Alternative Program at the Hazelton Secondary School.

In April 2017, he was indefinitely expelled for orchestrating, filming, and distributing online a fight between his friends. He did not earn any credits in 2016/2017 and has not attended school since. [ 25 ] As noted by Dr. Fuhr, Mr. Hilbach’s academic function is far lower than his IQ would predict. Dr. Fuhr attributes Mr. Hilbach’s underachievement to low self-esteem, lack of confidence, lack of interest, and poor follow through of school work at home. [ 26 ] Mr. Hilbach had completed some academic upgrading in English (Grade 8) and Math (Grade 10) while at Prince George Youth Custody Centre.

Addictions [ 27 ] Mr. Hilbach has struggled with addictions to drugs and alcohol. He started with marijuana when he was 10 years old. He added alcohol and cigarettes at 12. Since then he has escalated his drug use to include crystal methamphetamine and crack cocaine. Mr. Hilbach has attended Youth Mental Health and Addiction Services and the Nechako Youth Treatment Centre in April 2018. [ 28 ] Mr. Hilbach attributes his acquisitive offending to his need to fund his addictions. [ 29 ] Dr. Morgan opines that in light of his substance use disorders, Mr. Hilbach will probably require residential treatment. Dr.

Morgan notes that Mr. Hilbach also has unresolved grief issues with regard to his mother and would probably benefit from bereavement counselling. [ 30 ] Youth worker Theresa Forsythe has worked with Mr. Hilbach since 2013, after his first offence. She states it took some time to build a rapport with Mr. Hilbach. She states on page. 7 of her report (Exhibit 4): At eighteen years of age Cody appears to have matured, he is respectful and remains adamant in controlling his own healing journey

versus being directed to participate in treatment. Behavioural Issues [ 31 ] As Youth Worker Theresa Forsythe notes in her Pre-Sentence Gladue Report (Exhibit 4), Mr. Hilbach has been stereotyped as a prolific offender in the community. His social, psychological, and educational deficits and mistrust of authority has made him a challenging youth to mentor. Psychologist, Dr.

Su, states (Exhibit 3, p. 9): Cody’s acknowledgement that he is prone to respond with defiance to authority figures, despite his awareness that his personal goals align with their directives, is further evidence of his mistrust against those who are charged to care for him. Due to the inconsistencies and volatility in his upbringing, Cody is a youth who thinks and behaves in extremes. He simultaneously gave prosocial goals and espoused plans to change his ways, but labelled himself as “a bad kid” who has not been able to capitalize on his good intentions in the past.

When faced with frustration, Cody may turn inward through feelings of depression and self-abasement, resulting in a need to cope through the use of substances. However, at times, he may express his frustrations outwardly through his hostile attributions and physically and verbally aggressive acts. Thus, individuals who work with Cody are likely to experience him as emotionally mercurial and behaviourally unpredictable. Gladue Factors [ 32 ] Mr. Hilbach is an indigenous offender of the Gitxsan First Nations. As Youth Worker Theresa Forsythe notes (Exhibit 4, p. 2) Mr.

Hilbach was raised in a dysfunctional home due to his parents’ alcohol/drug misuses, unresolved childhood trauma, domestic violence, and limited education and/or employment skills. When he was 12 years old Mr. Hilbach and his older sister rescued their mother whom they found hanging as a result of a suicide attempt. A month later Cecilia Mowatt died in Vancouver in suspicious and drug-related circumstances. Cody Hilbach and his siblings, who had been in and out of Linda Hilbach’s care for five years prior to their mother’s death, went to live with her full-time. Still, Mr.

Hilbach’s chaotic upbringing shackled him with poverty, unemployment, lack of formal education, substance abuse, suicidal ideation, criminal convictions and incarceration. [ 33 ] Cody Hilbach turned 18 on November 12, 2018, while he was still in pre-trial youth detention. From the time of his release until his incarceration on August 12, 2019, he lived alternatively with Linda Hilbach and Jamie Hilbach. Prospects for Rehabilitation [ 34 ] Mr. Hilbach is pro-social in that he is close to his paternal family. Dr.

Su states (Exhibit 3, pg. 10): Despite the adversities in his life, Cody possesses unique personal strengths that may serve as protective factors against his current life trajectory. He remains connected to his family, recognizing they have tried to help, and is desirous of maintaining good relationships with them. He has historically taken

part in activities with family members and reported the experiences have been positive for him. Cody has demonstrated insight and accepted responsibility for his past transgressions. Without absolving himself, Cody pinpoints substance use, antisocial peer influence and idle time as catalysts for past offending behaviours. He has a desire to succeed and do well in life. [ 35 ] Mr. Hilbach psychiatric and psychological assessors believe Mr. Hilbach will require residential treatment to overcome his longstanding addictions. Mr.

Hilbach has and continues to express a willingness to attend a residential treatment centre for substance abuse. Nevertheless, there is some concern as to Mr. Hilbach’s prospects at a residential treatment centre in light of his oppositional stance against imposed structures, authoritative individuals and environments. Clearly, his assessors are of the view that Mr. Hilbach would benefit from ongoing counselling. Legislative Framework Breaking and entering with intent, committing offence or breaking out 348

(1) Every one who . . . (

b) breaks and enters a place and commits an indictable offence therein. . . is guilty . . . (

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on

summary conviction. Failure to comply with condition of undertaking or recognizance

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2) , and who fails, without lawful excuse, to comply with the condition, direction or order is guilty of . . . (

b) an offence punishable on

summary conviction.

[36] In this case, the Crown has proceeded summarily. Section 787(1) states: General penalty 787

(1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on

summary conviction is liable to a fineof not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. Purpose and principles of sentencing [37] Sentencing is a highly individualized process R. v. Ipeelee, 2012 SCC 13 , at para. 38. In R. v.

Knott, 2012 SCC 42, the Supreme Court held that "the purpose and principles of sentencing set out in the Criminal Code are meant to take intoaccount the correctional imperative of sentence individualization." The sentencing judge must balance the various sentencing goalstaking into account the particular circumstances of the offender well as the nature and number of his or her crimes: R. v.Boudreault, 2018 SCC 58 , para. 58. [38]

Section 718 of the Criminal Code holds the fundamental purpose of sentencing which is to contribute to respect for the law andthe maintenance of a just, peaceful, and safe society. This goal is accomplished by imposing just sanctions having one or more of thefollowing objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender; (

e) reparation tovictims; and (

f) promotion of a sense of responsibility in the offender. [39]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. [40]

Section 718.2(a), states a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the offender.

Section 718.2(

b) codifies the parity principle which holds sentence should besimilar to sentences imposed on similar offenders for similar offences in similar circumstances. [41]

Section 728.2(

c) codifies the totality principle which holds that where sentences are imposed consecutively, the combinedsentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender. It may offend thetotality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or itseffect is crushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R.500. [42] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if lessrestrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of aboriginal offenders: s. 718.2(e). In R. v.

Williams2019 BCCA 295, Madam Justice Smith for the Court of Appeal stated at paras. 51 and 52: [51] If the principle of proportionality is at the heart of sentencing, then the secondary principles of parity and individualization are thearteries that ensure its proper application. They are essential factors to consider in order to arrive at a proportionate sentence: Lacasse atparas. 53–54; R. v. Pham, 2013 SCC 15 at para. 8. [52]

Section 718.2(

b) of the Code mandates that similar sentences be imposed on similar offenders for similar offences committed insimilar circumstances. Embedded within the principle of parity is the recognition that no two offenders are identically situated. Theindividualized assessment of the circumstances of the offence and of the offender requires that where the offender, the offence, or thecircumstances vary, so too does the sentence. Sentencing Indigenous Offenders [43] R. v. Gladue, (SCC) and Ipeelee are the leading cases with respect to how s. 718.2(

e) should be applied andthe framework for sentencing indigenous offenders. The judge has a statutory duty imposed by s. 718.2(

e) to consider the uniquesystemic and background factors which may have played a

part in bringing the particular offender before the Court and the types ofsentencing procedures and sanctions that may be appropriate because of the offender’s particular indigenous heritage. The offender is notrequired to establish a causal link between background factors and the commission of the offence before being entitled to have thosefactors considered by the sentence judge. Judges may take judicial notice of the broad systemic and background factors affectingindigenous people generally and case-specific information from the offender and the presentence reports.

Position of the Parties [44] The Crown submits a fit sentence is a 150 day jail sentence for the break and enter offence followed by one year probation. TheCrown seeks a 30 day consecutive sentence for each of the two breaches of recognizance. The Crown also seeks a DNA ancillary orderand a stand alone restitution order to the Kispiox Cultural Centre in the amount of $1,337.13. In support of its position, the Crown hasprovided the Court with three authorities: R. v. Gilliland, 2014 BCCA 399, R. v. Nickles, 2013 BCCA 151, and R. v.

Kelter, 2010 BCCA252. [45] The defence submits that a 45 to 60 day global sentence is appropriate in the circumstances of this offence by this offender. Sentencing Precedents [46] In R. v. Kelter, 2010 BCCA 252, the BC Court of Appeal upheld an 18 month jail sentence imposed on a 28-year-old accusedconvicted of breaking and entering. Ms. Kelter was addicted to drugs and had a long record of property offences. She and her fiancébroke into a service station and stole the computerized top of the cash register. The fiancé pled guilty and received a sentence of five

months jail. Ms. Kelter was convicted after a trial and sentenced to 18 months jail less 8 months pre-trial credit. In finding the trial judgedid not err, Finch CJ, for the appellate court cited the following passages from the Reasons for Sentence: [11] There is more and more of this kind of criminal activity happening, certainly on Vancouver Island and elsewhere, and often it iscoupled with drug use. It has become a major problem in our society.

There has to be a strong message sent out that it is unacceptable andshould be thoroughly denounced, which is another principle of sentencing. . . . [14] A further lengthy sentence is the only way that this message is going to be brought home to you, Ms. Kelter, that this behaviour hasto stop, and that it is not going to be tolerated, and if you continue in this vein, you are going to be looking at longer and longer periodsof time in jail. [15] Using the 18 month criterion, I could well go above that, because I could start at that point and then step up from that.

I propose tostart at 18 months because, since that sentence was imposed, you have still had other problems resulting in jail time for ongoing offenceswhich suggests that nothing is working at this point, and the only way to deal with you is to allow you to start your rehabilitation whileyou are incarcerated. [47] In R. v. Nickles, 2013 BCCA 151, the 22 year old offender pled guilty in Provincial Court to six offences which had occurred inless than four months.

After a three-day hearing, the judge imposed a global sentence of eight months jail, which reflected an effectivesentence of 18 months' jail less ten months for the pre-sentence custody plus probation (which including a curfew) and a DNA order. Mr.Nickles committed all six offences while on a probation order. Those offences included two breaches of probation, one breach ofrecognizance, two escape lawful custody, one obstructing a police officer, and one commercial break and enter.

The most seriousoffence, a conviction under 348(1)(b), related to the offender's break and entry into a coffee shop and theft of a cash register. For thisoffence, the sentencing judge imposed a jail sentence of nine months plus one day. Mr. Nickles had been involved in criminal activitiessince he was 16. His criminal record included convictions for six property-related offences, five violent offences, and 14 for breachingcourt orders. He had one previous conviction for break and enter. Mr.

Nickles also received a jail sentence of 30 days on each breach of acourt order, to be served consecutively. [48] In Gilliland, the Court of Appeal upheld a four-year jail sentence imposed on an Aboriginal offender for six offences associatedwith the break-in and theft of lawn equipment from an equipment yard. The offender had a lengthy criminal record and was sentencedafter a seven-day trial. The circumstances in the Gilliland case were far more egregious than the one before the Court, and included theftof a stolen pickup and trailer, dangerous driving and driving while disqualified. Moreover, Mr.

Gilliliand had a previous conviction for asimilar offence in which he received a seven year sentence. The Crown relies on Gilliland principally for the appellate court’s approachto assessing the fitness of the trial court’s sentencing decision in respect to the offender’s indigenous heritage. The Court of Appealupheld the four year jail sentence despite having concluded the trial judge erred in failing to take judicial notice of the systemic factorsaffecting indigenous persons generally, even in the absence of the offender’s case-specific information.

Chief Justice Bauman states atparas. 17 to 19: [17] Although the sentencing judge erred, the analysis does not end there. The question becomes whether this error led him to impose asentence which is unfit.

Section 718.1 of the Code provides that the fundamental principle of sentencing is that a sentence “must beproportionate to the gravity of the offence and the degree of responsibility of the offender”. The systemic factors affecting Aboriginalpersons generally and the particular information in a Gladue report are relevant to an offender’s degree of responsibility (Ipeelee atparas. 73, 75). [18] Ipeelee provides guidance on the crafting of a fit sentence in light of s. 718.2(

e) of the Code (at para. 75): 75

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy theoverrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required topay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence inany particular case. This has been, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with therequirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including thestatus and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point,Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.Section 718.2(

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginalpeoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process. [19] Mr. Justice Hinkson (as he then was) made similar comments for this Court in R. v. Armstrong, 2010 BCCA 451 atpara. 11: 11 As explained by Mr. Justice Iacobucci in R. v.

Wells, 2000 SCC 10 at para. 44, while Gladue mandated a different approachto the sentencing of Aboriginal offenders, the approach did not necessarily require a different result, nor preclude the sentencing judgefrom giving primacy to the principles of denunciation and deterrence on the basis that the crime involved was a serious one. [49] The defence relies on Williams in which the BC Court of Appeal cautioned trial judges that sentencing ranges are guidelinesonly and are not intended to set out a baseline minimum sentence in all cases, regardless of the circumstances.

Justice Smith states atparas. 57 and 58: [57] This Court has adopted the approach of sentencing ranges because, in our view, they provide an optimal balance between furtheringparity and individualization in a sentence. Sentencing ranges are not more rigid than starting points but simply reflect an overview ofsentences that have previously been imposed for a particular offence.

They are intended to assist judges in arriving at a sentence that isconsistent with sentences for similarly situated offenders, in similar circumstances—furthering the principle of parity—withoutconstraining the judge’s discretion to go outside of the range to properly reflect the unique circumstances of the offence or the offender.They do not set out “practical minimum and maximum sentences.” For example, in Voong, Justice Bennett, for the Court, upheld three

sentences that fell below the sentencing range she identified. [58] Individual circumstances of the offence or the offender may require an increase or reduction from the range of sentence in order toensure that the sentence is a proportionate one that properly reflects the offender’s moral blameworthiness. [50] I am mindful that the principles of general deterrence and denunciation are paramount in the imposition of sentences forbreaches of court orders. Breaches of court orders ordinarily attract a consecutive rather than concurrent sentence otherwise there is nopunishment for the breach: R. v.

Paradis, 2016 BCPC 354 , para. 46. In R. v. K.S.C., 2015 BCPC 199 , Judge Giardinistates: [82] In this regard, both counsel referred to a case submitted by the Crown, R. v. Seaward, [2003] N.J. No. 307. It is a decision of JudgeGorman of the Newfoundland Provincial Court. In that case, the court reviewed the nature of breach orders and noted the following. [83] It is important that court orders be respected. It is critical that offenders not breach court orders or their undertakings to the courtwhile on release.

The proper administration of justice and the public's confidence in the administration of justice depends on compliancewith such orders. When such orders are breached, courts must stress the sentencing principles of specific and general deterrence. Thesetype of offences strike at the heart, purpose, and intent of our criminal justice system because they rob the victims of any sense ofsecurity that the court might provide through such orders. These types of offences make the court look impotent. [84] An important factor in sentencing on a breach of a court order is the nature of the breach which occurred.

For instance, failure tocomply with a condition that requires abstention from alcohol or which imposes a curfew is much less serious than one involving thefailure to comply with a no-contact condition. Aggravating, Mitigating Circumstances and Collateral Consequences [51] The sentencing judge must take into account any relevant aggravating or mitigating circumstances relating to the offence or theoffender: s. 718 .2(

a) of the Criminal Code. For the most part, aggravating and mitigating factors relate to two categories: a. the gravity of the offence regarding the culpability of the offender and the consequential harm which was caused; and b. how the offender’s character, past conduct, and post-offence conduct implicate a particular sentencing objective. [52] The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence,or the sentence imposed for an offence that impacts the offender: R. v. Pham, 2013 SCC 15 and R. v.

Suter, 2018 SCC 34. [53] Parliament has set out in the Criminal Code a number of aggravating factors, none of which are in play in these proceedings.Still, there are a number of aggravating factors which I have considered, including: a. Mr. Hilbach has a recent and relevant criminal record for the offences for which he has pled guilty, including four priorconvictions for breaking and entering a commercial establishment, one for theft, three for mischief, two for possession of stolen propertyand 37 for breaches of court orders. Of those breaches, 13 were for breaches of bail conditions; and b. Mr.

Hilbach was only recently placed on probation when he committed the offences now before the Court. [54] I have considered the following factors mitigating: a. Mr. Hilbach’s insight into his offending and taking responsibility for his offences; b. Mr. Hilbach’s early guilty pleas provides certainty and finality in these criminal proceeding. They are an expression of remorsewhich invites leniency; they spare the community the expense of a trial and reduces the trauma and inconvenience to the witnesses; c. Although not a “young person” or a first time offender, Mr. Hilbach is a youthful offender.

He is 18 years old, lacks maturity,parental guidance and mentorship. His distressed childhood has left him with a poorly functioning moral compass which dimishes hislevel of responsibility and moral blameworthiness; d. Mr. Hilbach is an indigenous offender. He has experienced the very kind of societal disadvantage specifically identifiedin Gladue: poverty, unemployment, interrupted education, family violence, a criminal record, intergenerational trauma, and addictions. Iam satisfied that those historical factors, both systemic within society and specific to Mr. Hilbach played a role in his criminal behaviour; e.

Mr. Hilbach also has physical, psychological, and developmental disabilities as identified in Exhibits 2, 3, and 4. In this regardpara. 81 of Williams is apropos, wherein the BC Court of Appeal, held: [81] . . . a sentencing judge must determine whether and to what extent an offender’s mental health issues contributed to the commissionof the offence. Where it is demonstrated that they have contributed to the offence, they are a mitigating factor that reduces the offender’smoral blameworthiness and therefore must be weighed in order to arrive at a proportionate sentence.” I accept Mr.

Hilbach’s cognitive impairments limits his ability to restrain his urges and impulses and hence diminishes his degree ofmoral culpability for the offences now before the Court; f. I also accept Mr. Hilbach’s drug addiction militates towards a rehabilitative sentence: see R. v. Hilbach, 2019 BCPC 73, citing R. v. J.L.H., 2012 BCCA 142, R. v. Preston (1990), (BC CA), 79 CR (3d) 61, and R. v. Azeez, [2014]OJ No 3091(CJ). This is particularly so given Mr. Hilbach’s youthfulness and the origin and extent of his addictions. Courts recognizethat general deterrence has little effect when dealing with addicts; g. Mr.

Hilbach does have pro-social tendencies which indicate a reasonable prospect for rehabilitation if he can overcome his

addictions. In the past, Mr. Hilbach has taken positive steps in turning his life around by taking rehabilitative programs while in youthdetention; h. At his sentencing hearing on September 6, 2019, Mr. Hilbach proposed he attend VisionQuest residential treatment centre,which could be a significant step towards overcoming his addictions. [55] I have considered the following factors, which are neither aggravating nor mitigating: a. Mr. Hilbach’s criminal offending does not include sexual offences or violence against other persons; b. The offences for which Mr.

Hilbach is being sentenced show remarkably little planning or forethought. As was the case in hisprevious convictions for breaking and entering commercial premises, Mr. Hilbach was readily identified on surveillance videos. He didnot appear to take the most rudimentary precautions to conceal his identity or avoid detection; c. As to the breaches of his recognizance, Mr. Hilbach was not outside his residence late at night or engaged in any suspiciousactivity.

He was simply walking down a street in the late afternoon or early evening in a small community where his presence was easilyobserved by patrolling officers; d. Mr. Hilbach was generally cooperative with the police when arrested and detained. As the Alberta Court of Appeal noted in R.v. Patton, 2011 ABCA 199 (at para 24), sitting quietly in the back of a police car after being arrested is doing no more than what isexpected of all detained individuals. Raucous behaviour in a police cruiser may be aggravating, but compliance with societal norms is notmitigating; e. The curfews on which Mr.

Hilbach was placed in his July 31, 2019 and August 8, 2019 Recognizances of Bail were particularlyonerous for a young man. The condition of house arrest imposed under the August 8, 2019 Recognizance, was one to which Mr. Hilbachvolunteered in order to secure his pre-trial release. It was likely an ill-considered concession given his FASD, ADHD, and conductdisorder. Mr. Hilbach’s ability to self-regulate was seriously compromised by his disabilities and he had no nurturing care giver to assisthim in this regard; and f. At the time of these offences Mr.

Hilbach had few options for stable and supportive housing in his community. His grandmotherwith whom he lived for many years could not or would not continue to shelter him. His father, Jamie Hilbach, was also under housearrest and struggling to overcome his drug addiction. Cody Hilbach was too young and too dysfunctional to succeed living on his own. Pre-Sentence Custody Credit [56] Mr. Hilbach was taken into custody on July 31, August 4, 8, and finally on August 12, 2019, where he has remained until today.He has 33 days actual presentence credit and 50 days with enhanced credit. Conclusion [57] In R. v.

Bosco, 2016 BCCA 55 , the British Columbia Court of Appeal stated the “process of determining a sentencerequires full consideration of the offence's gravity, including the harm caused, and the offender’s degree of responsibility, including hisor her moral blameworthiness.” At the conclusion of his sentencing hearing on September 6, 2019, Mr. Hilbach proposed he attendedVisionQuest, a well-known residential treatment facility.

I considered this a positive step towards his rehabilitation and I am hopeful heis able to self-regulate his oppositional defiance to structure and authority in order to take advantage of a residential treatment option. [58] I conclude a fit sentence to be 120 days jail on the charge of break and enter and 30 days consecutive on the August 4, 2019breach of recognizance and 30 days concurrent on the August 12, 2019 breach of recognizance. I note Mr. Hilbach is entitled to 50 dayspresentence enhanced credit. When he is released after serving his sentence Mr. Hilbach will be on probation for 12 months.

I will alsoimpose the ancillary and restitution orders the Crown seeks. Disposition [59] On the sole count on Information 25548-1 charging you with breaking and entering the Kispiox Cultural Centre with the intentto commit an indictable offence, namely theft, on June 10, 2019, in Kispiox, BC, I accept your guilty plea and find you guilty of thisoffence. I sentence you to a term of imprisonment of 120 days less time served. You have been in custody for 33 days. The term ofimprisonment I would have imposed before granting any credit is 120 days. I am granting you credit at a rate of 1.5.

The total credit I amgranting you is 50 days. There are 70 days left to serve on the sentence imposed for the offence of breaking and entering. This sentencewill be served consecutively to any other sentence I impose today. [60] On Information 25548-2-A, charging that on August 4, 2019, near Hazelton, BC, you breached the terms of your recognizanceby failing to obey a curfew between the hours of 7 p.m. and 7 a.m. each day contrary to s. 145(3) of the Criminal Code, I accept yourguilty plea and I find you guilty of this offence.

I sentence you to 30 days jail to be served consecutively to the sentence I imposed onInformation 25548-1, which is the break and enter, and concurrent to the sentence I will impose on 25548-4-A. [61] On Information 25548-4-A, charging that on August 12, 2019, near Hazelton, BC, you breached the terms of your recognizanceby failing to obey a curfew contrary to s. 145(3) of the Criminal Code, I accept your guilty plea and I find you guilty of this offence.

Isentence you to 30 days jail to be served concurrently with the sentence I imposed on Information 25548-2-A (breach of recognizance)and consecutively to the sentence I imposed on 25548-1 (break and enter). [62] This means you have a global sentence of 150 days, of which 50 days have been serve by way of pre-sentence credit onInformation 25548-1, leaving a total of 100 days remaining (70 days on Information 25488-1 and 30 days on Informations 25548-2-Aand 25548-4-A).

[ 63 ] I understand the Crown is directing a stay of proceedings on Information 25548-3-A. [ 64 ] There is a Victim of Fine Surcharge on the two breaches as they were committed after July 22, 2019. Given you are impecunious and will be in jail for a further period, I will waive the Victim Fine Surcharge. [ 65 ] Count 1 on Information 25488-1 is a primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 66 ] Pursuant to

section 738 of the Criminal Code , I order that you pay restitution in the amount of $1,337.13 to the Kispiox Cultural Centre. Pursuant to s. 739.2, the restitution must be paid no later than August 31, 2021. [ 67 ] Upon your release from jail, you must comply with the conditions of a probation order for a term of 12 months. The conditions of the order are: a. You must keep the peace and be of good behaviour. b. You must appear before the Court when required to do so by the Court. c.

You must notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change of employment or occupation. d. You must report in person to a probation officer at Smithers Community Corrections within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by the probation officer until such time as you have completed the counselling condition of this Probation Order. e. When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without notifying your probation officer. f. For first six months of this order, y ou must obey a curfew by being inside your residence, or on the lot on which it is located between the hours of 12 a.m. and 6 a.m. each day, 7 days per week.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends at your residence or calls to check your compliance with the curfew condition of this order. You may be away from your residence during the curfew hours with the written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the curfew hours.

You may also be away from your residence during the curfew hours: i. while in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide your probation officer with details of your employment, including location and hours of work; ii. in the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility.

If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went. g. You must not go to the Kispiox Cultural Centre at 1215 Frontage Street, at Kispiox, BC. h. Having consented, you must attend, participate in, and su c cessfully complete any intake, assessment, counselling, program, treatment, or residential treatment program as directed by your probation officer. i.

You must not possess any tools or instruments capable of use for criminal activity except: i. while on your property; ii. for the purposes of employment and then only when immediately engaged in work or traveling directly to and from your place of employment. You must provide your probation officer with the particulars of your location and hours of employment if requested to do so; iii. with the written permission of the probation officer, in which case you must carry the permission. _____________________ The Honourable J.T. Doulis Provincial Court of British Columbia

CORRIGENDUM – Released October 3, 2019 [1] In the Reasons for Sentence dated September 9, 2019, the following errors are corrected: a. The date of the judgment on the cover page is amended to read “September 9, 2019”; b. In paragraph 27, the word “additions” is amended to “addictions; c. In paragraph 57, the reference to “sstreatment” is amended to “treatment”. ______________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia