R. v. BRANCONNIER, 2018 MBPC 50

CITATION: R. v. BRANCONNIER , 2018 MBPC 50 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) M. Armstrong and M. Lafreniere ) for the Crown ) and ) ) ) Lionel Branconnier ) C. Antila ) for the Accused ) ) Sentence delivered: ) December 13 , 2018 C.A. DEVINE, P.J. Introduction [ 1 ] Mr. Branconnier was convicted of manslaughter in the death of Wayne Harper after trial. [ 2 ] Mr. Branconnier is a Métis man, 53 years of age. He has a limited criminal record, with no previous convictions involving violence. He had a traumatic, violent childhood at the hands of his parents. Mr.

Branconnier developed a faith in God as a child and that has been his main support. He has also been married and has two sons to whom he is devoted. He has a supportive family in his sister. [ 3 ] Mr. Branconnier has worked his whole life; between 2005 and 2016 he worked up north as a miner and trapper. [ 4 ] Unfortunately, he developed an addiction to alcohol early in his life and it has caused him and his family and now the community, much heartache and trauma. [ 5 ] I must impose sentence on Mr. Branconnier. [ 6 ] Mr. Branconnier is one of three men responsible for Mr.

Harper’s beating death. [ 7 ] One of the others is deceased, Jeremy Rae. [ 8 ] The other man, Oliver Okemow, pleaded guilty after the preliminary hearing and was sentenced by Justice Keyser to 44 months incarceration to be followed by three years of supervised probation. Mr. Okemow was still serving his sentence when he testified at Mr. Branconnier’s trial. [ 9 ] That sentence is an important benchmark in this case. [ 10 ] The Crown is seeking a sentence of seven years, minus the time that Mr. Branconnier has spent in custody before and since his trial.

The Crown cites the increased moral culpability and involvement of Mr. Branconnier in the beatings, the lesser impact of Gladue factors in Mr. Branconnier’s life and the expression of less remorse by Mr. Branconnier than by Mr. Okemow. [ 11 ] The Defence is seeking a sentence of 52.4 months, minus the time Mr. Branconnier has spent in presentence custody, plus three years of probation, stating that the lengthier sentence she is proposing takes into account Mr. Branconnier’s greater involvement in the beatings. [ 12 ] Mr.

Branconnier also plead guilty to breaching a condition of his recognizance, when he left the John Howard Society on October 5, 2017. Counsel agree a fit sentence for the breach is 15 days in custody. [ 13 ] Mr. Branconnier has spent a total of 578 days in presentence custody. Enhanced at a rate of 1.5 days for every day he has spent in custody, that is 867 days. Expressed in years, that is nearly two and one half years in custody. Expressed in months, it is approximately 29 months.

Facts [14] Mr. Branconnier and Mr. Okemow punched and kicked Mr. Harper on the night before his death, which was acontributing cause of his death. Mr. Harper was defenceless. He was asleep. Mr. Branconnier initiated the assault insofar as he wanted toteach a lesson to Mr. Harper for speaking poorly of him among the homeless people living in Winnipeg’s west end. [15] The next morning Mr. Branconnier’s group was joined by Mr. Rae, and Mr. Branconnier bragged about the beating. Hesaw Mr. Harper, again sleeping against a tree. This time the three men kicked and punched the completely defenceless Mr. Harper. [16] Mr.

Harper died later that day from a massive subdural hematoma. [17] Mr. Branconnier and all the people involved were living on the streets at the time and consuming alcohol and intoxicantssuch as hand-sanitizer and hairspray. Mr. Branconnier had been intoxicated for months prior to the manslaughter. He was intoxicated atthe time of both assaults. He had a complete black-out from the time of the first assault until the beginning of the second assault.

Purpose of Sentencing, s. 718 [18] The purpose of sentencing in Canada is to contribute to a safe, peaceful and just society, by imposing a fair sentence thathas one or more of the following objectives: denunciation, deterrence, separation of offenders from society where necessary,rehabilitation, providing reparations to victims or the community, and promoting a sense of responsibility in offenders andacknowledgement of harm done to victims and the community. [19] Several of those objectives are relevant in this case. [20] Denunciation is necessary to express society’s condemnation of a brutal, senseless and unnecessary beating death.

Mr.Harper was a young man, 31 years of age. The crime was committed for petty, mean reasons, because Mr. Branconnier believed Mr.Harper was saying he stole among the homeless community. Denunciation of this addlepated, stupor-induced drinking leading toviolence is necessary. [21] The sentence must be deterrent. It must assist in deterring Mr. Branconnier from being in a position where this couldoccur again. He is a serious alcoholic.

The sentence must deter him from engaging in drinking that in the past has led him to wanderingthe west end of Winnipeg, drinking, stealing, homelessness and, in this case, violence. [22] The sentence must be rehabilitative. It can be in this case, because of Mr. Branconnier’s insight into his addiction and hisdemonstrated willingness and ability to address it. [23] This sentence can promote a sense of responsibility in Mr. Branconnier and his acknowledgement of the harm his offencehas caused to Mr.

Harper’s mother and other family members, to his Island Lake community and to the community of Winnipeg. [24] The fundamental principle in sentencing is that a sentence must be proportionate to the seriousness of the offence and thedegree of responsibility of the offender. 1. The Seriousness of the Offence [25] Manslaughter is culpable homicide. The maximum sentence for manslaughter is life.

The range of acts comprising theoffence of manslaughter is broad, from acts that are closer to murder to those closer to accident. [26] Justice Philp for the Manitoba Court of Appeal cited Lord Salmon of the English Court of Appeal from R. v. Cascoe,[1970] 2 A; E.R. 833, stating: . . . manslaughter is, of course, a crime which varies very, very greatly in its seriousness. It may sometimes come very close toinadvertence. That is one end of the scale. At the other end of the scale, it may sometimes come very close to murder. (p. 837) (cited in R. v. Csincsa, (MB CA), [1993] M.J.

No. 237 at para. 5) [27] The Manitoba Court of Appeal observed that sentences for manslaughter therefore range in length and character. ChiefJustice Freedman stated the following in R. v. Sinclair (1980), (MB CA), 3 Man. R. (2d) 257 (C.A.): The offence of manslaughter presents the widest possible range for sentencing among all the offences in the Criminal Code.

A sentenceof life imprisonment may in one set of circumstances not be too much, and a suspension of sentence may in a different set ofcircumstances not be too little. (p. 257) In short, the breadth of the factual circumstances in which the offence of manslaughter may be committed is equalled only by the widediscretion given to the judge on sentencing. (cited in Csincsa, ibid, at para. 5) [28] Some direction as to how to analyze those factual circumstances was provided by the Court of Appeal in Csincsa, whereJustice Philp stated that the culpability of the offender’s actions and the extent of violence or brutality will be paramount factors indetermining the appropriate range of sentence. [29] This manslaughter was very serious.

Both attacks involved beating Mr. Harper while he was laying down and asleep. Hewas completely defenceless. Both attacks involved more than one person. Both attacks involved kicks and punches so severe that Mr.Harper suffered a massive subdural hematoma that caused his death. Mr. Branconnier initiated the first attack – it was he who sought outMr. Harper’s camp after learning that Mr. Harper was bad-mouthing him. He went to confront Mr. Harper. The next morning he bragged

to Mr. Rae about the beating the night before, feeding Mr. Rae’s animus towards Mr. Harper. When they saw Mr. Harper, Mr. Raekicked him in the head and then the Offender and Mr. Okemow joined in, hitting and kicking Mr. Harper in the head and chest. [30] They were beatings that left Mr. Harper with a brain hemorrhage that killed him in a few hours. [31] The brutality does not rise to meet the level of some manslaughter deaths however, where the person is beaten withweapons or curb stomped. In R. v.

Bell (April 28, 1993) Man.C.A., the offender received a sentence of 12 years for a prolonged attackwith a baseball bat on his girlfriend. He had three previous aggravated assault convictions. In R. v. Pociuk (November 17, 1989)Man.C.A., the court upheld the seven year sentence where the offender slashed a pregnant woman with knives. [32] Mr. Harper has left behind family – adult siblings and a mother. His mother did not want to attend this sentencing, butchose to have her victim impact statement from Mr. Okemow’s sentencing in 2016 filed with the Court.

She talked about worrying abouther son and the choices he made. She worried that something bad would happen to her son, “and when it did, I was devastated.” Mr.Harper’s mother works in social services with clients who have addictions. She wrote of having difficulty differentiating from her clients’lives and her own, after the circumstances of her son’s manslaughter death. At the time of making the victim impact statement in 2016she was trying to take a stress leave, but the financial cost was making it very difficult. She was trying to shore up the family to protectMr. Harper’s siblings from this pain.

She ended her statement saying, “I want everyone to understand that nothing will ever be the samefor me again. All I can do is keep trying to move on but I know it will be a lot of work. Nothing will ever bring my son back.” 2. The Moral Culpability of the Offender, including Gladue Factors [33] The degree of planning and premeditation was limited in this case. Although Mr. Branconnier intended to confront Mr.Harper the night of the first attack, I am not convinced that he planned to beat him. That plan may have occurred on the spot, once theyarrived at Mr. Harper’s camp. [34] Mr.

Branconnier is a mature man, 53 years of age. He has a limited criminal record with no convictions involvingviolence. He has a dated conviction for break and enter offence from 1986. His sentence was suspended and he was placed on two yearsof supervised probation and restitution. He had a theft and an impaired driving conviction from 2010. He had some breaches of probationand recognizance, at least some of which were related to him living on the streets at the time. [35] Mr. Branconnier’s sister attended his trial and provided input for the presentence report.

She confirmed that her brotherhas not exhibited violence in the past. She noted that he is “An alcoholic but not mean. Always quiet…” Likewise, his former wife whospoke to the presentence report writer endorsed no history of violence, “We are able to communicate, but I don’t like his drinking. He isnot violent or aggressive. Not with me or the kids.” She told the presentence report writer that he is “silly” when intoxicated and she hasnever witnessed aggressive behaviour by him. His adult son similarly stated, “I don’t want to end up like him with those charges. It’sshocking to know what he is being charged with.

He would never hurt anyone. He just struggles with alcohol.” [36] Mr. Branconnier had been living on the street and drinking daily for months before this offence. His only activity eachday was to obtain alcohol of some form and drink. He was virtually always intoxicated. There are major black-out periods during thetime frame in which he and the others beat Mr. Harper. [37] Alcohol was the main factor in this manslaughter. [38] At this stage, it is important to consider Mr. Branconnier’s background as a Métis person and the unique systemic andbackground factors that have played a

part in bringing him before the courts. This consideration is intrinsic to the proportionalityanalysis. Justice LeBel explained in the Supreme Court of Canada case of R. v. Ipeelee, 2012 SCC 13 that there is a two-part analysisthat is required by subsection 718.2(

e) of the Criminal Code, the subsection that requires: s. 718.2(

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders, with particular attention to the circumstances of aboriginal offenders. [39] The first part of that analysis determines how the Indigenous person’s background impacts on the proportionalityanalysis: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness. . . .

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack ofopportunities and limited options for positive development. While this rarely - if ever - attains a level where one could properly say thattheir actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances maydiminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB1097, 331 A.R. 50, [page478] after describing the background factors that lead to Mr.

Skani coming before the court, "[f]ew mortalscould withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into accountwould violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. (at para. 73) (Emphasis added) [40] Similarly, in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, Justices Cory and Iacobucci stated: The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.

Years ofdislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack ofopportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. (at para. 67) [41] A clear line can be drawn from the alcohol-fuelled violence of this manslaughter, back to Mr. Branconnier’s early onsetand lengthy alcoholism and back further to his early childhood, which can only be described as Dickensian. His father was an abusivealcoholic who subjected him to terrible abuse. According to Mr.

Branconnier’s sister, their parents “hated Lionel” when he was a child.He did not feel loved and always looked hurt. Their mother was raised by “abusive nuns.” Mr. Branconnier remembers being dragged

out of bed by his father in the middle of the night and beaten until he cried. His mother would do nothing to help him. He was oftenlocked in the basement without light as punishment. His father died when he was six and he felt a sense of relief. When he smiled on theday of his father’s funeral, the adults in his family were angered. He was beaten by other family members and ostracized by his mother.His mother subsequently took on the role of abuser and alcoholic in his life.

By the age of seven he was so physically and mentallyabused by his mother he found it hard to get out of bed in the morning. [42] When he was 10 years old he attempted suicide in the garage. He believed God saved his life. “I was crying to God that Iwas going to see him.” His mother took him to a physician and the physical abuse stopped that day. [43] He would often not come home after school, waiting in a local church for “God to take him.” [44] He began drinking and using drugs in Grade 5.

By Grade 7 he kept bottles of rye in his school locker and was using acid. [45] Of his childhood and mother he stated, “Mom was never there. She never showed affection. I was never held in her arms.I was only shown hatred. I was on my own all the time.” [46] Defence counsel aptly described the child abuse and neglect in Mr. Branconnier’s childhood as “staggering.” [47] A Jehovah’s Witness came to their house when Mr. Branconnier was a child; this visit provided him with his first insightinto self-belief and faith, which he says he has maintained throughout his life. [48] Mr.

Branconnier does not identify a home community and feels disconnected from his Métis heritage. He grew up inWinnipeg. His former wife is Oji-Cree from Red Sucker Lake and Mr. Branconnier moved up north in 1997 and then worked on herfamily’s trap line from 2005 to 2016, also working in the gold mine when trapping season was over. [49] Mr. Branconnier was released to the John Howard Society Bail Program while waiting for his trial, from March 5, 2017to October 5, 2017, a period of seven months.

During that time he played drums three days a week at the Frist Nation Family WorshipCentre and developed a passion for drumming. He had begun drumming while living in Red Sucker Lake. Other Relevant Sentencing Principles, s. 718.2 Aggravating and mitigating factors (s. 718.2(a)) [50] It is aggravating in this case that Mr. Harper was completely defenceless and that the attacks were two on one and threeon one. [51] Many of the mitigating factors were discussed in the context of the circumstances affecting Mr.

Branconnier’s moralculpability in committing the offence. [52] There is no guilty plea in this case to mitigate sentence, but Mr. Branconnier expressed remorse through his counsel andin his own words at the sentencing hearing. He said he thinks about Mr. Harper and what happened every day. He said he has sons tooand he is very sorry. He recognizes that he took someone from a family who loves him. He wishes he could take it back. Parity [53] Subsection 718.2(2)(

b) requires that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [54] The most obvious comparator in this case is the sentence imposed on Mr. Branconnier’s co-accused, Oliver Okemow,who was also involved in both of the assaults on Mr. Harper (R. v. Okemow, 2016 MBQB 240). After a preliminary hearing, Mr.Okemow plead guilty to manslaughter. Justice Keyser sentenced him to 44 months to be followed by three years of supervised probation.His sentence going forward was two years less a day. Mr.

Okemow’s participation in the beatings was less than that of Mr. Branconnier.He expressed considerable remorse before Justice Keyser and also during his testimony in this trial. There were very tragiccircumstances in Mr. Okemow’s early life that were taken into consideration by Justice Keyser. As an adult, Mr. Okemow and his familywere displaced from Lake St. Martin after that community was flooded in 2011 to save other parts of the province. Also, Mr.

Okemowhad taken steps towards rehabilitation, having been involved in the Winding River Therapeutic Community (Winding River) program foralmost a year from the date of his arrest. Justice Keyser imposed a restorative sentence that would allow Mr. Okemow to continue toaddress his alcohol abuse, and the factors underlying it, in the Winding River program, to be followed by supervised probation at whichtime he planned to return to either Oxford House or Lake St. Martin, where he had support and where his risk of reoffending wassignificantly less. [55] Mr. Okemow had a more serious record than Mr.

Branconnier, who had no violence in his record. I cannot agree withCrown counsel that the Gladue factors in Mr. Okemow’s life were more serious or mitigate his moral culpability more than the Gladuefactors in Mr. Branconnier’s life. Although I agree that Mr. Okemow’s guilty plea and expressions of remorse were clear andunequivocal, I also note that his plea came after a full preliminary inquiry where the same witnesses testified as in Mr. Branconnier’strial. [56] Crown counsel filed other cases involving manslaughter sentences which are of assistance in showing the range ofsentence for manslaughter.

Distinguishing features can be found in all of them. The same decisions were also before Justice Keyser, whosummarized them at paragraph 9 of her decision in Okemow, as follows: The Crown provided the following cases: 1. R. v. Csincsa, (MB CA), [1993] M.J. No. 237 (QL), 85 Man.R. (2d) 241 (MBCA) - A sentence of eight years

was imposed. The court determined that the case was very close to murder and was an assault by a sober, young, strong man upon a smaller, intoxicated and much older man. 2 . R. v. Abraham , 2011 MBQB 299 , 272 Man.R. (2d) 216 - A sentence of five years minus time in custody was imposed on an offender who beat the victim and left him without assistance lying on the side of a road dying in winter conditions. 3 . R. v. Abraham and Starr , 2014 MBQB 242 , 311 Man.R. (2d) 310 - A sentence of nine years minus time in custody was imposed.

Both accused beat the victim severely in a prolonged attack, then left him for dead in a shed, and attempted to clean up the scene. Both accused had extensive records for violence. 4. R. v. Plowman , 2015 BCCA 423 , [2015] B.C.J. No. 2167 (QL) - Three accused swarmed the victim and one stabbed him fatally. Two accused received sentences of seven years and one five years. The Court of Appeal concentrated on the prevalence of swarming incidents that needed to be deterred. They upheld the sentences, while finding them to be on the high side.

A Restorative Approach to Sentencing [ 57 ] The Supreme Court’s decisions in Gladue and Ipeelee were a judicial response to the over-incarceration of Indigenous people and judicial direction to address it. The second step of the Gladue analysis is to consider a restorative approach to sentencing, mandated by subsections 718 (d), (

e) and (

f) and subsections 718.2 (

d) and (e). [ 58 ] The groundwork had been laid by Parliament in enacting the sentencing provisions found at

section 718 and following in the Criminal Code : Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in para. (

a) through ( d ). What are new, though, are paras. (

e) and ( f ), which along with para. (

d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. ( d ), ( e ), and (

f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process: D. Kwochka, "Aboriginal Injustice: Making Room for a Restorative Paradigm" (1996), 60 Sask. L. Rev. 153, at p. 165. Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament's choice to include (

e) and (

f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s. 718.2(

e) will necessarily be informed by this re-orientation. ( Gladue at para. 43 ) [ 59 ] As the Supreme Court also discussed in Gladue , the legislative history demonstrates that Parliament intended in enacting these sections, a clear departure from the common law in terms of sentencing, which would reserve jail only for those where it was necessary and which would address the crisis of over-incarceration of Indigenous people in Canada.

The Supreme Court quoted the Justice Minister at the time, Alan Rock, who stated when introducing second reading of Bill C-41 on September 20, 1994 : A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences but who do not need or merit incarceration. . . . . .

Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society.... [T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done. It is not simply by being more harsh that we will achieve more effective criminal justice. We must use our scarce resources wisely. (at para. 44) [ 60 ] In addition to the codification of restorative sentencing objectives in subsections 718 (d), (

e) and (f), subsections 718.2 (

d) and (

e) of the Criminal Code require the sentencing judge to exercise restraint: 718.2 (

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [ 61 ] The purpose of subsection 718.2(

e) is to ameliorate the overrepresentation of Indigenous people in prisons and to encourage sentencing judges to take a restorative approach to sentencing Indigenous offenders. Justice LeBel stated in paragraph 73 of Ipeelee that the existence of circumstances faced by many Indigenous offenders: . . . may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se .

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 in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [ 62 ] Justice LeBel went on to state that the type of sanctions that might be appropriate for an Indigenous offender bear on the effectiveness of the sentence (at para. 74). To that end, the Supreme Court directed judges to take judicial notice of the broad systemic and background factors affecting Indigenous people, and of the priority given in Indigenous cultures to a restorative approach to sentencing.

[ 63 ] The point is not the length of the incarceration, but a sentence that is fit and appropriate that can incorporate a restorative approach to the extent possible. It is an over-simplification to state either that jail sentences for Indigenous offenders should be shorter, or that jail sentences for serious offences are the same for Indigenous and non-Indigenous offenders.

The approach must always be different when sentencing Indigenous offenders, and that approach must be restorative to the extent possible. [ 64 ] Even where the objectives of denunciation and deterrence may call for a jail sentence, it is possible to take a restorative approach to an offender’s sentence.

The Supreme Court recognized in 1999 that the approach to be taken would develop over time: The concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context. In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist.

The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime. ( Gladue , at para. 71 ) [ 65 ] In a 2005 appeal to the Manitoba Court of Appeal involving two offenders where no Gladue presentence report was before the sentencing judge, Chief Justice Scott stated: All those who are involved in the process of sentencing aboriginal offenders need to do better to ensure that the Supreme Court’s expectations in Gladue are fulfilled. ( R. v.

Flett , 2005 MBCA 61 at para. 22 ) [ 66 ] The unique approach taken to sentencing Indigenous offenders must be taken in all cases, including for serious offences. Counsel frequently cite authorities they purport state that in cases involving serious offences the sentence for Indigenous and non- Indigenous offenders will frequently be the same. ( R. v. Elliot , 2015 BCCA 295 , at paras. 8 – 17 and 34 ; R. v.

Abraham , 2011 MBQB 299 at para. 11 ) Indeed, some cases make that observation, but an observation cannot be interpreted as an exception to the principled approach in sentencing Indigenous peoples required by Gladue and Ipeelee . [ 67 ] Justice LeBel stated this trenchantly in Ipeelee at paragraph 87 : The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [ 68 ] It should not be forgotten that Mr. Ipeelee was subject to a Long Term Supervision Order (LTSO) as a consequence of his lengthy record of serious offences. [ 69 ] Ipeelee was not only a restatement in the strongest of terms, of Gladue . It also stands for two other critical principles.

First, that the unique circumstances of Indigenous people must always be taken into account and given expression in the resulting sentence. Secondly, a reduction in a jail sentence is sometimes the result. [ 70 ] Mr. Ipeelee was placed on an LTSO after committing two sexual assaults, two assaults causing bodily harm and an aggravated assault. He did not suffer from any mental illness. He had average to above-average intellectual ability. He had been diagnosed with antisocial personality disorder and severe alcohol abuse disorder.

His offences were marked by extreme violence; the sentencing court described “a consistent pattern of Mr. Ipeelee administering gratuitous violence against vulnerable, helpless people while he is in a state of intoxication” (at para. 10). His LTSO had been previously suspended on four occasions. The breach before the Supreme Court involved him riding a bicycle erratically while intoxicated in downtown Kingston, with two bottles of alcohol in his pocket.

He was originally sentenced to three years in jail for the breach, because alcohol had been involved in all his previous offences, he would become violent when abusing alcohol and he posed a significant risk to offend sexually. However, taking into account the principles of sentencing for LTSO as well as the circumstances of Mr. Ipeelee as an Indigenous person, the Supreme Court substituted a sentence of one year. [ 71 ] There are several other examples of sentence reduction after consideration of Gladue circumstances. In R. v.

Park , 2016 MBCA 107 at paragraph 24 , Justice Steel stated, The Gladue factors are not only to be considered when deciding whether to impose a term of imprisonment. They should also be considered when determining the length of that custodial sentence. [ 72 ] Similarly, in R. v.

L.L.D.G. , 2012 MBCA 106 , the Manitoba Court of Appeal reduced a young Indigenous offender’s sentence from 10 years to five years, in “ attempting to pay more than lip service to the Gladue principles and requirements” (at para. 45). [ 73 ] It is well known that imprisonment has not achieved the desired effect of reducing crime and recidivism, as the Supreme Court documented in Gladue at paragraphs 54 – 57 , citing several studies and commissions.

Justices Iacobucci and Cory summarized these at paragraph 57 by stating: Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. [ 74 ] It is recognized that sentencing alone will not get to the roots of the problem of over-incarceration of Indigenous people.

In Gladue , Justices Cory and Iacobucci were mindful that poverty, substance abuse, lack of education and lack of employment opportunities lead to incarceration. However, they also cautioned sentencing judges to nonetheless do what could be done to address the problem, at paragraph 65:

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. [ 75 ] In Ipeelee , Justice LaBel quoted with favour Professors Rudin and Roach who posed the question, . . .

"[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or her actions 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).( Ipeelee at para. 67 ) [ 76 ] The Supreme Court directed that in determining whether restorative justice objectives can be satisfied in a particular case, the judge should consider: • the offender’s prospects of rehabilitation, • including whether the offender has proposed a particular plan of rehabilitation, • the availability of the appropriate community service and treatment programs, and • whether the offender has acknowledged her/his wrongdoing and expresses remorse. [ 77 ] Despite the fact that there is still a dearth of alternatives to incarceration for serious offences in Manitoba, the judge must consider what alternatives do exist: . . .

Whether the offender resides in a rural area, on a reserve or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender. ( Gladue , at para. 84 ) [ 78 ] Similarly, sentencing judges are not to resile from attempting to impose a restorative sentence even where there appears to be no specific, Indigenous sentencing alternatives: . . .

Sentencing judges should not conclude that the absence of alternatives specific to an aboriginal community eliminates their ability to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved. Rather, the point is that one of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. ( Gladue , at para. 74 ) . . .

However, even if community support is not available, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative. For all purposes, the term "community" must be defined broadly so as to include any network of support and interaction that might be available in an urban centre.

At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. [Emphasis added] (at para. 92) [ 79 ] Sentencing judges have more recently taken into account the programming that is available in various correctional institutions and how offenders are doing in those programs, to impose a sentence that incorporates restorative principles.

Such an example is the sentence of co-accused Okemow, where Justice Keyser imposed a sentence for manslaughter in a provincial institution so that Mr. Okemow could: . . . complete the Winding River program and then be supervised in the community for a number of years afterwards.

That will best protect the community and allow for the rehabilitation of Okemow while not losing sight of the principles of denunciation and deterrence. (at para. 23) [ 80 ] Justice Keyser recognized that the length of incarceration might be on the lower end, but stated that she tried to balance the aggravating factors with the Gladue factors and Mr. Okemow’s prospects for rehabilitation. “In this way, I believe the safety of the community is best served and the principles of sentencing best satisfied” (at para. 26). Application of Restorative Sentencing Principles to this Case [ 81 ] Mr.

Branconnier is a 53-year-old Métis man, with a solid work background, blending both traditional Indigenous and Métis trapping work and work as a miner. He has had a long-standing addiction to alcohol. It is his severe alcoholism that led him to living on the streets and to this offence. Before this time, his criminal record was limited and devoid of any violent offences. Mr. Branconnier is very passionate about drumming. He has a deep and abiding faith in God. [ 82 ] Mr. Branconnier has expressed remorse for this crime. [ 83 ] His prospects for rehabilitation are good.

He did well in the John Howard Society bail program while on release from March to October 2017, where he participated in self-help group meetings, completed the Coming To Terms, End to Aggression, Introduction to Healthy Relationships and the Positive Parenting programs. He regularly attended the Men’s Resource Centre (MRC) for therapy sessions. He underwent random urinalysis and remained clean during his stay. He volunteered with the Canine Healing Services program, with the Salvation Army and with community pow wow events. He also attended Thrive Community Group Circle sessions. Mr.

Branconnier self-discharged on October 8, 2017 and was arrested and taken into custody on November 7, 2017. [ 84 ] He was not in conflict with anyone while at the John Howard Society, nor has he had any conflict with other inmates since he entered Headingly Correction Centre on November 16, 2017. I note this is unlike the situation of Mr. Okemow whose

presentence reported included information from correctional staff who reported he had serious impulse control issues. Mr. Branconnier is noted as being polite and respectful towards correctional staff and other inmates. [ 85 ] He entered the Winding River program at Headingley after completing the Thinking Awareness Group (TAG) program. [ 86 ] It is important to note that Mr. Branconnier is deeply committed to his sons, one of whom is also incarcerated in Headingley.

He made the difficult decision to leave the Winding River program for a period of time to be in the Trades program so that he could be with and support his son. This is an important connection, given the extreme issues of lack of family attachment and abuse underlying Mr. Branconnier’s drinking. [ 87 ] Mr. Branconnier re-entered the Winding River program on September 26, 2018. His son is also in the program at this time, in Phase Two of the program. Mr. Branconnier has nearly completed Phase I of the program. [ 88 ] Mr. Branconnier started drumming in 1997 when he moved to the Island Lake area.

He picked up drumming again while he was on release with the John Howard Society, where he drummed three days a week. He states that drumming allows him a release and he feels a connection to his faith. [ 89 ] His former wife’s Oji-Cree family would allow him back to the north to work on their trap line in Red Sucker Lake First Nation. He has a long history of working in the north without any problems related to drinking. A condition of this work up north, according to information provided both by the Offender and his former wife, is that he not be on any form of community supervision. [ 90 ] Finally, Mr.

Branconnier has apparently reconnected with his family. His sister and her husband attended several court sittings. He has reconnected with his sons. His former wife and her family remain willing to provide employment. [ 91 ] Similar to Mr. Okemow’s situation, I find that the Island Lake communities, and the larger community which would include Winnipeg, as well as Mr. Branconnier, would best be served by a sentence that combines a jail sentence with healing and restorative measures. It is important that Mr.

Branconnier complete the Winding River program and take advantage of any follow up healing and rehabilitative programming in the community. [ 92 ] The presentence report writer who is a Probation Officer, recommended he continue to use the Men’s Resource Centre to provide social services and support men at risk. The MRC is able to connect Mr. Branconnier to counselling, programming, housing and employment. It also offers a community shelter. The Probation Officer recommended services of AFM. He also recommended Native Clan Organization to assist Mr.

Branconnier in reintegrating into the community. [ 93 ] The presentence report writer recommended professional counselling to address unresolved childhood trauma, reconnection with his church and continuation of his passion playing the drums, and a referral from a physician to have a mental health assessment conducted through the Canadian Mental Health Association. The Probation Officer also suggested that Mr. Branconnier might benefit from the Culturally Appropriate Programming offered by Probation Services. Sentence [ 94 ] Mr. Branconnier’s sentence going forward from today’s date will be two years less a day.

Added to the sentence is the almost two and one-half years he has already spent in custody. He has accrued 852 days of presentence custody on the manslaughter and 15 days on the breach which will be his sentence for that offence. The total effective sentence on the manslaughter is therefore 52.4 months. [ 95 ] The intention is to impose a sentence that expresses denunciation for this brutal, senseless crime resulting in loss of a young life. It is longer than Mr. Okemow’s sentence in recognition of the greater role Mr. Branconnier played in the assaults on Mr. Harper. [ 96 ] It also takes into account Mr.

Branconnier’s reduced moral culpability because of the Gladue factors in his life. [ 97 ] Although there is a significant period of incarceration involved in this sentence, it is a restorative sentence. It allows Mr. Branconnier to continue and complete the Winding River program at Headingley. It allows him to continue to be with his son. [ 98 ] The period of incarceration on the manslaughter charge will be followed by three years of supervised probation to continue the restorative sentence, protect society and allow for further rehabilitation.

I recognize that he will not be eligible to work on the trap line of his former wife’s family in Red Sucker Lake while he is on probation. I took that into consideration. But, I believe a longer period of probation is necessary to continue the healing journey Mr. Branconnier has begun at the John Howard Society and in Winding River. If at some point during the three year period of probation his probation officer believes that reporting can be very infrequent, this may allow Mr. Branconnier to work on the trap line.

Alternatively, he may find other work up north that does not require its employees to be without reporting requirements. [ 99 ] The conditions of the probation order, in addition to the mandatory, statutory conditions are: - Report within 24 hours of your release from jail and thereafter as required by Probation Services - Continue to participate in the community-based Winding River program, or other programs to maintain your sobriety, such as programs offered through NADAP, AFM and AA - Abstain from the consumption of alcohol or other intoxicants - Take any professional counselling to address childhood trauma and other family of origin issues - Attend, participate and complete the CAP program if deemed appropriate by your Probation Officer

- Work at wage/salary employment or traditional trapping - Possess no weapons (except as necessary to provide food for yourself or your family) [ 100 ] The following ancillary orders are made: -

Section 109 mandatory 10 year weapons prohibition; -

Section 487.051(1) DNA primary designated offence; if you do not provide a sample of your DNA while in custody, you will do so within 30 days of your release from jail. [ 101 ] The victim surcharge of $200 plus $100 on the breach is payable forthwith. Default is noted. It will run concurrent to your sentence. “Original signed by:” C.A. DEVINE, P.J.