R. v. Willness, 2024 BCSC 238

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Willness, 2024 BCSC 238 Date: 20240111 Docket: 26817-2 Registry: Nelson Rex v. Alex Willness Before: The Honourable Madam Justice Lyster Oral Reasons for Sentence Counsel for the Crown: S.E. Firestone (by videoconference) C.-A. P. Pine Counsel for the Accused: J.D.A. Watt T. Forss (by videoconference) Place and Date of Hearing: Nelson, B.C. December 18 & 19, 2023 Place and Date of Judgment: Nelson, B.C.

January 11, 2024 Introduction .. 2 Circumstances of the Offence .. 2 Victim Impact .. 5 Circumstances of the Offender .. 6 Personal Background of the Offender 6 Gladue Factors . 11 Criminal Record . 12 Crown and Defence Positions .. 13 Legal Framework .. 15 Application .. 18 Introduction [ 1 ] THE COURT: Alex Willness is before the court for sentencing on his conviction for the manslaughter of Allan Young, contrary to s. 236 (

b) of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ]. [ 2 ] Mr. Willness was convicted after trial on June 20, 2023. I presided over Mr. Willness’ sentencing hearing on December 18 and 19, 2023. These are my reasons for sentence. Circumstances of the Offence [ 3 ] My Trial Reasons are indexed at R. v. Willness , 2023 BCSC 1216 (“Trial Reasons”). In my Trial Reasons, I set out at length the circumstances of the offence. I will only briefly summarize them now.

[ 4 ] On the night of July 16, 2020, Allan Young was enjoying drinks and a snack with his wife on the patio of the Cantina Del Centro restaurant on Baker Street in Nelson, British Columbia. There were other tables of patrons on the patio, including a group of six friends and a father and his son. Their evenings were disturbed when Mr. Willness and a friend wandered down Baker Street. Mr. Willness was drunk. He had been released from the Nelson Police Department drunk tank a few hours before, and he had since gotten drunk with some people he met on the street. He was upset about having been sprayed in the face.

He was swearing loudly, threatening to, as he repeatedly shouted, “fuck someone up”. [ 5 ] All of the people who heard and saw Mr. Willness that night were disturbed by his conduct. Some of them were frightened. Mr. Difiore, who had seen and heard him a little earlier on Josephine Street, was sufficiently intimidated that he retreated to the entrance to his hotel. Ms. Phillips, the server that night at the Cantina, was afraid that the men were going to kill one another or that something bad was going to happen. She told Mr. Willness and his friend that she was going to call the police. [ 6 ] Mr.

Young was upset with the disturbance Mr. Willness was causing and went out onto the street to intervene. Mr. K. Tait heard him say, “You guys need to stop,” and to tell them to “relax”. Mr. Willness said, “No, fuck off.” As I stated at para. 229 of my Trial Reasons, Mr. Willness was looking for a fight. [ 7 ] What happened next was summarized as follows at para. 4 of my Trial Reasons: [4] During the altercation, Mr. Young suffered three impacts to the head. The first occurred after the two men initially made contact, and Mr. Young fell, hitting his head on the pavement. The second occurred when Mr.

Willness struck Mr. Young on the head with his skateboard. The third occurred when Mr. Young fell after being struck by the skateboard, hitting the back of his head on the pavement. Mr. Young suffered severe head injuries, which resulted in his death four days later in hospital. [ 8 ] Mr. Willness’ actions in striking Mr. Young with his skateboard had a deep impact on those who witnessed them. Mr. Coons had never seen

an act of violence that severe. Mr. K. Tait said Mr. Willness swung the skateboard like a baseball bat with a tremendous amount of force. There was a loud crack that sounded like a gun going off. Both Mr. K. Tait and Mr. S. Tait said that Mr. Young went down like a sack of potatoes. As I said at para. 209 of my Trial Reasons: “The violence used by Mr. Willness was shocking to everyone who saw and heard it.” [ 9 ] Mr. Willness ran away after Mr. Young fell to the pavement the final time. The other patrons on the patio immediately leapt into action. Several of them, in particular Ms. Sparrow and Ms.

Howe, ran out into the street to try to help Mr. Young until the first responders arrived. Several of them, including Mr. Coons, Mr. Trafiak, and the two Taits, ran down Baker Street after Mr. Willness and apprehended him a half a block away. As they sought to gain control of Mr. Willness, he swung his skateboard at them, and he spat, with blood from his mouth landing on the face of Ms. Sparrow. They were finally able to hold Mr. Willness until the police arrived and arrested him. Even once he was under arrest, Mr.

Willness continued to be unable to control his anger, kicking out the back window of the police cruiser he was placed in. [ 10 ] Most of the other patrons on the patio that night testified in the trial. As I stated at paras. 20-24 of my Trial Reasons, the events they saw and participated in that night were traumatic and affected them deeply. [ 11 ] Mr. Willness’ chief defence at trial was that he acted in self-defence. I rejected this defence. I will repeat what I stated at paras. 243-245 of my Trial Reasons, in concluding that Mr.

Willness was not acting in self-defence: [243] In respect of the first part of the interaction, I do not believe that Mr. Willness swung his skateboard at Mr. Young for a defensive purpose. Mr. Willness had created this situation by his aggressive and confrontational behaviour, behaviour which disturbed everyone who observed it. While he was initially shouting about wanting to “fuck someone up” indiscriminately, his words and conduct had a direct effect on everyone who heard him. Ms. Phillips was sufficiently concerned about his behaviour that she told him she was going to call the police. It was Mr.

Willness who chose to cross the street to meet Mr. Young, thereby escalating the encounter, when he could simply have continued to walk down Baker Street and to try and get himself to Castlegar. [244] It is true that Mr. Young raised his hand. But given the context and Mr. Willness’ role in bringing this situation about, I do not accept that Mr. Willness’ purpose in swinging his skateboard was defensive. He was angry and he wanted to, as he had repeatedly shouted, “fuck someone up.” The skateboard he had in his hand was an effective tool to do so, and it is for that purpose that he swung it at Mr. Young’s body.

I have no reasonable doubt about the lack of a defensive purpose in this action. [245] All of that is even more apparent with respect to Mr. Willness’ action in swinging the skateboard down on Mr. Young’s head. There could be no defensive purpose to that action, given that Mr. Young posed no threat at that time. Mr. Willness’ purpose was not to defend himself, but to use his skateboard in anger and in doing so to hurt Mr. Young. [ 12 ] In short, as I stated at para. 263, Mr. Willness was the author of this situation. He instigated the confrontation with Mr. Young.

His use of the skateboard as a weapon was entirely disproportionate to any threat Mr. Young posed at any stage of this incident. His use of the skateboard to strike Mr. Young in the head when he was struggling to get to his feet, in a vulnerable position, was, as I stated at para. 269, entirely disproportionate to the non-existent threat Mr. Young posed at that time. Victim Impact [ 13 ] There were multiple victims to this offence. First and foremost, there is Mr. Young, who lost his life. He was 55 years of age, newly married, on vacation with his wife, Kimberly Young.

He was a police officer with the Abbotsford Police Department. He was the father of a daughter, Mackenzie Young. He had much to live for and all of that was taken away from him by Mr. Willness in an instant. [ 14 ] I have the benefit of victim impact statements from Kimberly, from Mackenzie, from Mackenzie’s mother Stephanie Young, and from Allan’s family in Scotland.

[ 15 ] Kimberly lost the love of her life. She was forced to take Allan off life support at a time when they were looking forward to spending the rest of their lives together. She was proud to be Allan’s wife. Since his death, Kimberly has been plagued by nightmares, lack of sleep, and anxiety, which she has found crippling. [ 16 ] Mackenzie lost her beloved father. Mackenzie was only 18 years of age when her father died. The future she imagined with her dad walking her down the aisle, seeing her graduate from university, being a grandfather to her children, was all taken away.

Mackenzie saw her father lying in his hospital bed. She saw him lying there in a state no child should ever have to see their father. Those images play out in her mind every night before she falls asleep and they haunt her in her nightmares. Mackenzie has suffered emotionally, physically, and financially since her father’s death. Only now, some three years since her father’s death, does she feel she is finally able to start putting her life back together. She misses her father every day. [ 17 ] Stephanie has been forced to watch her daughter grieve the loss of her father. The stress has affected her physically.

She has also lost the financial support that Allan provided to both her and Mackenzie. [ 18 ] Allan’s family in Scotland lost a son, a brother, an uncle, and a friend. They are devastated and heartbroken. They feel sadness and anger since his death. [ 19 ] No words I can say will undo the pain and sorrow Allan’s family and friends have suffered, nor will any sentence I can impose bring back their loved one. However, I want Allan’s family and friends to know that I have heard and reflected on your statements, and I have considered the gravity of the harm Mr.

Willness caused to Allan and to you in ending his life in determining the sentence to be imposed. [ 20 ] While Mr. Young is of course the primary victim of this offence, and his friends and family are those who have been most affected, those who witnessed Mr. Willness’ actions and their impact on Mr. Young are also victims of this crime. They were traumatized and deeply affected. That was evident in their testimony at trial, including their demeanour when they testified. The people who were on the Cantina patio that night will never forget what they saw, heard, and felt. [ 21 ] The impacts of Mr.

Willness’ actions go beyond those who directly experience them. The community as a whole suffers when violence erupts and rends its fabric. I can do no better than to quote what Associate Chief Justice Holmes said in R. v. Newton , 2016 BCSC 1440 [ Newton ] at para. 30 : [30] The offence has serious effects on the local community as well. A killing of one person by another disturbs the trust and confidence that members in the community have in one another, particularly when the killing takes place in a public place and without any apparent warning or reason.

The quality of life declines for all members of the community as a result. Circumstances of the Offender Personal Background of the Offender [ 22 ] The court has the benefit of both a pre-sentence report (“PSR”) and a Gladue report in understanding Mr. Willness’ background and his personal circumstances. [ 23 ] The PSR was filed on August 11, 2023, and was completed after Mr. Willness was brought back into custody on July 31, 2023. That happened after he tested positive for fentanyl while residing at the New Visions facility, pursuant to the terms of his release order. I pause to note that Mr.

Willness denies having used fentanyl at that time and the Crown did not seek to prove at the sentencing hearing that he in fact did so. [ 24 ] The Gladue report was filed December 15, 2023. [ 25 ] Mr. Willness is now 29 years of age. He was 25 at the time of the offence. [ 26 ] Mr. Willness faced a number of challenges in his childhood. His mother was only 13 when she was sexually assaulted and conceived her son. Mr. Willness has never had any contact with his biological father or his family. Given his mother's young age, she needed the help of her parents, Mr. Willness’ grandparents, in raising him.

He went back and forth between their homes. [ 27 ] Mr. Willness describes his grandparents as “straight-edged church people”. He says that life with his grandparents was good and that they sheltered him. They were both employed in responsible positions. They were not abusive towards him. [ 28 ] According to Mr. Willness, his mother never engaged in any substance abuse. His mother had a number of partners. He reported to the Gladue report writer that when he was three or four years old, one of them drank and did drugs and was physically abusive to him. As a result, he returned to live with his grandparents.

At the age of ten or 11, he moved to Alberta to live with his mother and her then-partner. Mr. Willness reports that his stepfather and mother argued, and that his stepfather was verbally abusive. He returned to his grandparents’ care again. [ 29 ] Mr. Willness began using alcohol and other drugs as a teenager. According to his mother, his drug use, combined with mental health issues, made it impossible for him to return to her care. She says that her family repeatedly sought help for Mr.

Willness, but he could not make good choices when using drugs and he could not be compelled to avail himself of available help once he turned 18. [ 30 ] Mr. Willness himself acknowledges that his relationship with his grandparents was strained when he was a teenager due to his use of alcohol and drugs. He acknowledged to the PSR writer that he has issues with anxiety and panic attacks, but he feels that his grandparents manipulated the medical system and made up stories to clean him up and teach him a lesson. He believes that it was the medication he was prescribed that made him ill.

[ 31 ] For their part, Mr. Willness’ grandparents say that they did their best to help him, but they could no longer have him in their home. [ 32 ] Mr. Willness reports having a troubled time in school and feeling like a social outcast and being bullied. He began skipping school a lot in grade 10. He got into fights. He was placed on an online program, but he did not initially complete it. To his credit, in 2015, he was able to complete his grade 12 online. He is interested in continuing his education with further vocational training. [ 33 ] Mr.

Willness has had some limited employment, but he has had difficulty maintaining it. He delivered newspapers when he was 13. He has done some work as a carpenter’s helper for his uncle. He reported to the PSR writer that he quit a cabinetry job after his employer complained he was not working fast enough. He worked at both Canadian Tire and Rona, but lost both jobs due to drinking and being late. Since 2015, his main source of income has been Persons with Disabilities benefits, supplemented by some part-time work. [ 34 ] After Mr.

Willness was unable to live with any of his family, he became homeless and couch-surfed. He told the PSR writer that he was well known to Nelson Police. He feels that people in Nelson viewed him as “filth” and treated him like “trash”. [ 35 ] The court has no independent medical evidence about what, if any, mental health conditions Mr. Willness has been diagnosed with. The court does have some information about Mr. Willness’ involvement with mental health and substance use treatment. He says that his grandparents took him to hospital to clean him up.

He described the treatment he received there as inhumane and that he was given medication for schizophrenia, which he denies having. Community Correction information supports that Mr. Willness was hospitalized in 2014. He was taking medication that he reported at that time helped with paranoid thoughts. He stopped taking that medication and was re-admitted to hospital. He then transitioned to a stabilization unit. He was discharged in December 2014, and then returned to hospital in January 2015 due to paranoia. [ 36 ] Mr.

Willness reports that he completed an online day treatment program in about 2017, but that he did not find it effective. [ 37 ] In August 2020, after this offence was committed, Mr. Willness was hospitalized due to concerns raised by Community Corrections and Castlegar Mental Health. He received an injection which he reported was working for him, and that he was not feeling compelled to use drugs or alcohol. On release, he was soon homeless again. [ 38 ] In December 2020, Mr. Willness attended the Burnaby Centre for Mental Health and Addiction.

His stay there was expected to be between three and nine months, but after 11 days he reported to Community Corrections that he had been discharged after having an issue with another resident. The PSR writer asked him to sign a release to allow her to contact the Burnaby Centre, but he discontinued the interview before that could be obtained. [ 39 ] After his arrest for manslaughter in March 2021, Mr. Willness was released in June 2021 to New Visions, where he remained until July 31, 2023, when he was discharged in the circumstances to which I have already alluded.

The court does not have a report from New Visions about what programs and treatment Mr. Willness took

part in during that period of over two years, but the court does have general information about New Visions, which is a licensed facility that houses and works with people with chemical dependency. Their program is based on cognitive behavioural therapy and 12-step programs. They work with the people they house on issues such as unresolved grief and loss, anger management, and relapse prevention. Of note, New Visions provided a letter dated December 14, 2023, in which they confirmed that they have a bed available for Mr.

Willness and are willing to have him released to their custody. [ 40 ] Since being returned to custody on July 31, 2023, Mr. Willness has actively engaged in available programming related to substance abuse education. He has written a relapse prevention plan. In my view, the plan demonstrates that Mr. Willness has achieved some insight into his alcoholism, and the things he needs to do to maintain a sober lifestyle. [ 41 ] Currently, Mr. Willness reports that he is taking gabapentin to help with anxiety and trazodone to help with sleep. He reports that he has done a lot of work on his mental health.

The PSR writer indicated that Mr. Willness appears to vacillate between demonstrating personal insight into his anger to shifting blame to others. According to the PSR writer, Mr. Willness was not open to working with mental health professionals as he believes they are somehow out to get him. In submissions, Mr. Willness’ counsel indicated that this is not accurate and that he is, in fact, willing to work with professionals. [ 42 ] In terms of his substance use, Mr. Willness reports that he first began smoking marihuana and drinking alcohol when he was 14. He experimented with other drugs in his teenage years.

Mr. Willness reports that it was only after this offence that he began smoking fentanyl and he says that he twice tried to overdose to kill himself. [ 43 ] Mr. Willness describes himself as an alcoholic and says that he has relied on alcohol to cope, drinking heavily during periods of homelessness. He has identified that drinking alcohol has led him to commit crimes and to cause disturbances. [ 44 ] He describes himself as now committed to living a sober life. He reports that he no longer has thoughts of harming himself or any desire to use drugs or alcohol. [ 45 ] It is apparent that Mr.

Willness has longstanding addictions and other unspecified mental health challenges. To his credit, he recognizes that he is an alcoholic and he has done work to try and address his substance use. However, Mr. Willness appears to lack insight about his other mental health challenges and his willingness to work with mental health professionals to address those challenges has been markedly uneven. [ 46 ] While living at New Visions, Mr. Willness earned his Construction Safety Ticket. He worked as a landscaper, but was laid off following his conviction.

He then found work with Coastal Solutions Traffic, but according to a manager with New Visions, he was terminated after he argued with a supervisor and walked off the job. The PSR writer reports that she conducted a follow-up interview with Mr. Willness at Surrey Pre-trial after his discharge from New Visions, but he exited the interview before she could discuss this employment with him. [ 47 ] Mr. Willness remains in contact with his mother, although they have not seen one another since he was 19, now some 10 years

ago. She lives in Alberta with her current partner and her two young daughters. Mr. Willness has never met his half-sisters. [ 48 ] His family members appear to be generally supportive of him, but his relationships with them have clearly been harmed by his alcohol use and antisocial behaviour, and he appears to remain angry with them for hospitalizing him, reporting feelings of abandonment, in particular by his mother. [ 49 ] Mr. Willness is single and he has no dependants. He does have one supportive childhood friend. Gladue Factors [ 50 ] Mr.

Willness reports that he comes from an Indigenous background, although he was not able to provide the PSR writer with any information about it. His grandparents were able to explain that his grandfather’s great-grandmother, Susan Porter, was

part Cherokee. This makes Mr. Willness sixth generation Cherokee. [ 51 ] Mr. Willness’ grandfather has been actively researching his family's history. He told the Gladue report writer that Ms. Porter was originally from Illinois and that the family travelled west. This move west is not inconsistent with the forcible relocation of the Cherokee people during the period known as the Trail of Tears in which, between 1830 and 1850, approximately 60,000 people from the Five Civilized Tribes were forcibly displaced by the U.S. Government. [ 52 ] Mr.

Willness’ grandfather provided the Gladue report writer with screenshots of documents drawn from the Dawes Commission website that related to Susan Porter being

part Cherokee. Mr. Willness’ grandfather reported that the family was long aware that Susan Porter was

part Cherokee, but that Mr. Willness was not raised with his Cherokee heritage. According to Mr. Willness’ grandfather, this was because self-identifying as Indigenous when Susan Porter was alive opened the door to discrimination. As a result, subsequent generations were not raised with their culture. [ 53 ] While Mr. Willness is substantially unaware of his family’s Indigenous history, he is interested in learning more about it and reclaiming his culture. [ 54 ] The Gladue report writer expresses the opinion that there are a number of adverse factors present in Mr.

Willness’ life that affect Indigenous people in general. These include having been conceived as a result of a sexual assault, early and chronic use of substances as a coping mechanism, and consequent involvement with the criminal justice system, and the intergenerational effects of the loss of cultural identity caused by the U.S. Government’s forcible removal of the Cherokee Nation from their lands. This loss of culture has affected Mr. Willness and his family. Criminal Record [ 55 ] While not as extensive as the criminal records of the offenders in some of the cases referred to me by counsel, Mr.

Willness does have a criminal record. On August 7, 2013, Mr. Willness was convicted of a number of offences, namely assaulting a police officer, mischief under $5,000, and breach of an undertaking. He was sentenced to 14 days to be served intermittently and 18 months’ probation. The terms of his probation order included that he abstain from alcohol and participate in counselling as directed by his probation officer. [ 56 ] Mr. Willness breached the terms of his probation order on August 20, 2013. On August 29, 2013, he was convicted of that breach and of impaired driving causing bodily harm.

He was sentenced to 30 days and 18 months’ probation. The terms of his probation were similar to the first probation order, including being prohibited from the consumption of alcohol and being required to attend counselling as directed. [ 57 ] Mr. Willness’ next conviction was on November 14, 2019. At that time, he was convicted of mischief and given a suspended sentence and 12 months’ probation.

The terms of his probation on this occasion did not include a requirement to abstain from alcohol, but they did include the requirement to attend counselling as directed. [ 58 ] As I said, this is certainly not as extensive a criminal record as one sometimes sees. Given Mr. Willness’ age, 25 at the time of the offence for which he is now being sentenced, it is not insignificant. It bears noting that he has one, albeit dated, conviction for a crime of violence. Mr.

Willness’ criminal record is also consistent with what is made clear in his PSR and Gladue report, and indeed in his testimony at trial: he has a longstanding problem with alcohol, and that problem is intimately tied up with his offending behaviour. Crown and Defence Positions [ 59 ] The Crown and the defence take markedly different positions with respect to an appropriate sentence for Mr. Willness. [ 60 ] The Crown emphasizes Mr. Willness’ moral culpability in committing the offence.

The Crown submits that the most important sentencing principles in this case are deterrence and denunciation, and that a fit sentence would be in the range of six to eight years. The Crown says that a sentence of this length would adequately reflect society's condemnation of Mr.

Willness’ actions, separate him from society for a substantial period of time, and provide him with an environment in which he can have access to the addiction, mental health, and cultural supports he needs to rehabilitate himself. [ 61 ] The defence acknowledges that denunciation and deterrence are of primary importance in this case, but submits that the court should also be concerned with rehabilitation, emphasizing Mr. Willness’ age and the steps he has taken in recovery. The defence submits that Mr.

Willness’ intoxication at the time he committed the offence, while it does not justify or excuse his behaviour, can be taken into account in assessing his moral culpability. The defence does not suggest that Mr. Willness’ conduct was related to his mental health, acknowledging the lack of medical evidence to support such a position. The defence submits that the range for this offence and this offender would be from a suspended sentence to a sentence of three and a half years. It submits that an appropriate sentence would be

two years less a day, less time served, to be served as a conditional sentence in the community followed by three years’ probation. Thiswould, in the defence’s submission, provide Mr. Willness with the maximum amount of time under supervision in the community,thereby promoting his rehabilitation. In the alternative, should the court be of the view that incarceration is necessary, the defencesubmits that the sentence should be served in a provincial institution. Given the amount of time that Mr.

Willness has already served, thiswould mean a maximum sentence of approximately three years less time served. [62] As in the recent case of R. v. Harry, 2023 BCSC 999 [Harry], a case in which the parties took almost identical positions as in thecase at bar, the following can be said about the stark differences in the parties’ positions with respect to an appropriate sentence for Mr.Willness, and I quote from para. 6, only inserting Mr. Willness’ name in place of Mr.

Harry’s: [6] Underlying these divergent positions are conflicting views regarding the appropriate relative weight to be given to the sentencingobjectives of denunciation, deterrence, and rehabilitation, the role of self-induced intoxication in determining [Mr. Willness’]responsibility for the offence, the systemic and background factors unique to him as an Indigenous person, and the guidance provided bysentencing decisions in other manslaughter cases. Legal Framework [63] In Newton, to which I have already referred, Holmes A.C.J. at paras. 40-42, provided the following succinct

summary of thegeneral sentencing principles which this court must apply in determining a fit sentence for Mr. Willness: [40] The fundamental purpose of sentencing is to protect society, and to contribute to respect for the law and the maintenance of ajust, peaceful, and safe society.

Section 718 of the Criminal Code relates that fundamental purpose to the six main objectives ofsentencing, which it sets out as follows: (1) denunciation of the offending conduct and of the harm done to victims and the community;(2) deterrence of the offender and of other people from criminal conduct; (3) separation of the offender from society where necessary;(4) rehabilitation of the offender; (5) reparation to victims or the community; and (6) the fostering of the offender's acknowledgement ofresponsibility and of the harm done to victims or the community. [41] The relative emphasis to be given to the various sentencing objectives will vary, according to the particular offence and theparticular offender. [42] Further principles of sentencing, designed to help achieve the sentencing objectives I have outlined, are set out in sections 718.1and 718.2 of the Criminal Code.

Principles that apply in this case include the following: (1) a sentence should be proportionate to thegravity of the offence and the degree of responsibility of the offender, and should be similar to sentences imposed on similar offendersfor similar offences committed in similar circumstances (the proportionality principle); and (2) a sentence should be increased or reducedto reflect any relevant aggravating or mitigating circumstances relating to the offence or to the offender. [64] Because Mr. Willness has Indigenous heritage, the court must consider s. 718.2(

e) of the Code, which provides: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [65] In Harry at paras. 71-75, Justice Fleming provided the following

summary of how s. 718.2(

e) is to be applied in sentencingIndigenous offenders: [71] Introduced in 1996, the provision is intended to deal with the crisis of overrepresentation of Indigenous people in Canada'scriminal justice system: R v. Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13. As JusticeMarchand observed in R. v.

Harry, 2018 BCSC 2069, the crisis is one driven by alienation, poverty, substance abuse, lower educationalattainment, lower rates of employment, and prejudice experienced by Indigenous people that has resulted from Canada's colonial historyand policies of cultural destruction such as the horrific legacy of Indian Residential Schools: para. 22. [72] The case of Gladue identified Indigenous offenders as different from others because they “are victims of systemic and directdiscrimination”: para. 68. [73] In sentencing an Indigenous offender, Gladue and Ipeelee require a sentencing judge to consider two factors:

a) the unique systemic or background factors which may have played a role in bringing the offender before the court; and

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances. [74] With respect to the first factor, although every offender's background may be highly relevant to the assessment of theirresponsibility for the offence, Gladue and Ipeelee make it clear that the unique systemic or background factors of an Indigenous offendermay diminish their moral blameworthiness for the offence. [75] Other important principles established in Gladue and Ipeelee include: • the court must take judicial notice of the history of colonialism, displacement, and residential schools, and how that historycontinues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse andsuicide, and higher levels of incarceration for Indigenous peoples; • these factors provide the requisite context for considering the case-specific information; • the offender is not required to establish a causal link between the systemic and background factors and the offence, but a

link may be important or helpful in finding a fit sentence; and • although taking a restorative approach will not necessarily lead to a reduced sentence, in many instances restorativesentencing principles will be primarily relevant because the prevention of crime as well as individual and social healing cannot occurthrough other means. [66] Manslaughter is a unique offence. A person may unlawfully cause the death of another, in the absence of the specific intentnecessary to commit murder, in a myriad of circumstances. The moral culpability of persons found guilty of committing manslaughtervaries widely.

This wide range of moral culpability is why there is neither a minimum nor a maximum sentence for manslaughter.Depending on the circumstances, available sentences can range from a suspended sentence to life imprisonment. [67] The Court of Appeal described the factors to be taken into account in determining a fit sentence for manslaughter as follows atparas. 24-26 of R. v. Badhesa, 2019 BCCA 70 [Badhesa]: [24] The offence of manslaughter encompasses conduct which has caused the death of another person and falls short of intentionalkilling.

It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attachalong a continuum within that spectrum. A sentencing judge assesses moral culpability for manslaughter by considering the offender’smental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all incombination.

Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’sconduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death: R. v.Plowman, 2015 BCCA 423 at para. 40, citing R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 80; R. v. Stone, (SCC), [1999] 2 S.C.R. 290 at para. 247. [25] The purpose of the balancing exercise is to ensure that the sentence fits the degree of the offender’s moral fault for the harmdone by the unlawful act underlying the offence of manslaughter.

The measure of the fitness of a sentence lies in the principle ofproportionality: a sentence must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. If asentence for manslaughter passes this fundamental test it is a fit sentence. If it does not, it is unfit: Stone at para. 233; R. v. LaBerge,1995 ABCA 196 at paras. 6–11; R. v. Draper, 2010 MBCA 35 at para. 7. [26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment.

Given that wide range, the judgemust carefully determine the degree of an individual offender’s moral culpability and craft a sentence that accounts adequately for theunique constellation of relevant factors present in a case. The task is complex and sometimes factors unrelated to where the unlawful actfalls on the “near accident” to “near murder” spectrum nonetheless bear on the degree of the offender’s moral culpability. Where anoffender falls on the spectrum of individual moral culpability is a question of fact.

Absent palpable and overriding error, that finding isentitled to deference: Plowman at paras. 39, 44–45, citing R. v. Richer, 2005 BCCA 3; R. v. Engebretsen, 2016 BCCA 182 at paras. 9–12, 17. [68] The case law refers to a number of potential ranges for manslaughter sentences. Justice Crerar referred to the following rangesand their utility in crafting sentences for manslaughter at paras. 50-51 of R. v. Halverson, 2020 BCSC 1095 [Halverson]: [50] The Crown starts with two Court of Appeal cases that are frequently cited in manslaughter sentencing decisions. In R. v.

Gillies(1998) (BC CA), 107 BCAC 157 at paras 11-12, the Court noted that while the Criminal Code prescribes a range formanslaughter running from suspended sentence to life, the typical range is 4 to 6 years. In R. v. Richter, 2005 BCCA 3 at paras 33-34,the Court indicated that those ranges were merely guidelines or suggestions, and that a court should focus on the principles of sentencingset forth in the Criminal Code, as well as the circumstances of the offense and the offender.

Ultimately, sentencing is an individualizedprocess: the sentence must be one that is appropriate for this particular offence and this particular offender. [51] In R. v. Badhesa, the Court of Appeal provides further guidance with respect to the appropriate sentencing range formanslaughter: [49] In Green, this Court stated that most sentences for manslaughter fall within the period of four to 15 years’ imprisonment. Asentence below or above that range is only imposed in rare cases involving special circumstances: Green at para. 10. In R. v.

Ispanovic,2008 BCCA 270, this Court reduced an effective eight year sentence for manslaughter to six years in circumstances involving a heavilyintoxicated elderly offender who shot and killed an acquaintance. In R. v. Johnson, 2017 BCSC 1240, Justice Donegan sentenced ayoung aboriginal offender to four years’ imprisonment for manslaughter for stabbing a stranger to death while heavily intoxicated. In R.v.

McCulloch, 2016 BCSC 2069, Justice Fisher sentenced a middle-aged offender with a lengthy criminal record and history of drugaddiction to six years’ imprisonment for manslaughter for stabbing an acquaintance to death. [69] Justice Fleming also discussed sentencing ranges in Harry at paras. 77-82. She makes the important point that they are guidelinesonly and that the court must always exercise its discretion to fashion a sentence which is fit, given the individual circumstances of theoffender and the offence. [70] In addition to the ranges referred to in Halverson, she referred at para. 81 to R. v.

Pop, 2013 BCCA 160, where the Court ofAppeal referred to a range of sentences for young Indigenous offenders without prior criminal records who committed manslaughter inaggravated circumstances as between three and eight years, with one and ten years at the outer ends. Application [71] I turn to a consideration of a fit sentence for Mr. Willness. There is no question that the sentencing objectives of denunciation anddeterrence are of primary importance in this case. That said, the court must not lose sight of the goal of Mr. Willness’ rehabilitation incrafting his sentence.

[ 72 ] I begin by considering the mitigating and aggravating factors. Dealing first with the mitigating factors, I find the most significant mitigating factor to be Mr. Willness’ sincere remorse for causing Mr. Young's death. Mr. Willness apologized in court to Mr. Young’s family for the harm he caused Mr. Young and them. I accept that the remorse he showed in his remarks was real and heartfelt. It is consistent with the statements he made to Detective Constable Anstey the day after the offence, where he displayed genuine dismay about his actions and expressed the hope that Mr.

Young would be okay. [ 73 ] Also mitigating is the fact that Mr. Willness has taken some real steps towards recovery. He recognizes that he is an alcoholic. He has some insight into the negative effects alcohol has on his life, and its role in his offending and otherwise antisocial behaviour, and he shows signs of being committed to living a sober life. Those steps have been halting at times, but he did live at New Visions for over two years before his discharge, and he has continued to work on his recovery since being returned to custody at the end of July 2023. [ 74 ] It is crucially important, for Mr.

Willness and for society that his highest commitment in the days and years to come be to his continued recovery. Mr. Willness, you cannot afford to ever pick up a drink or take other mind-altering substances. The risk of you engaging in the kind of risk-taking, aggressive, and violent behaviour you did on July 16, 2020, if you fail to maintain your sobriety, is simply too high for you, for your family, for your friends, and for the community as a whole. [ 75 ] Of lesser mitigating force is Mr. Willness’ relative youth. He is now 29 and was 25 at the time of the offence.

This is certainly younger than the offenders in some of the cases referred to by counsel, such as Halverson and R. v. Smith , 2019 BCSC 2084 [ Smith 2019 ]. But he is also considerably older than the offenders in some of the cases, such as R. v. McGoran , 2004 BCSC 1737 [ McGoran ], R. v. Jack , 2008 BCCA 437 [ Jack ], and R. v. Smith , 2017 BCSC 2513 [ Smith 2017 ], where the youth of offenders between 18 and 20 was seen as a significant mitigating factor. Mr. Willness is, in this respect, more like the offender in R. v. Creagh , 2020 BCSC 872 [ Creagh ]. Mr.

Creagh was 28 and, at para. 85 of that decision, Justice Power commented that his age was rapidly becoming a non-factor as he was now into his mid to late twenties. [ 76 ] I view Mr. Willness’ criminal record as a relatively neutral factor in this case. He does have a criminal record, so he does not have the benefit of the absence of any criminal record as a mitigating factor, unlike the offenders in some of the cases such as R. v. Morris , 2018 BCSC 803 [ Morris ], and McGoran , to which I have already referred.

But his criminal record, it should be stated, is relatively sparse and there is a gap in time between the 2013 offences and those in 2019. [ 77 ] Unlike the offenders in many of the cases cited by the defence, Mr. Willness did not plead guilty. That was, of course, his right. However, a guilty plea is a significant mitigating factor, and it is one which Mr. Willness does not have the benefit of. It is, of course, not an aggravating factor. [ 78 ] I turn next to the aggravating circumstances of this offence. First, there is the very significant harm done to Mr.

Young who lost his life, and the impact on his family, friends, colleagues, and the community as a whole as a result of Mr. Young’s tragic, sudden, and untimely death. There is also the trauma suffered by those who witnessed the offence and who responded to assist Mr. Young and to apprehend Mr. Willness. Some of those people themselves experienced violence from Mr. Willness, who swung his skateboard at the people trying to apprehend him and spat at Ms. Sparrow. Given what they had just seen Mr. Willness do to Mr. Young with his skateboard, his conduct after the offence must have been terrifying. [ 79 ] Mr.

Willness’ conduct in getting drunk and engaging in aggressive, offensive, and ultimately violent behaviour is aggravating. I find apposite what Holmes A.C.J. said in Newton at para. 54 about the importance of holding people who use drugs and alcohol responsible for the harm they do while intoxicated: [54] It is extremely important that people who embark on the use of mind-altering drugs which carry high risks of inducing behaviour out of their conscious or rational control understand that they will be held accountable for harm they do to others while they are in the intoxicated or altered state.

The lure of the drugs can be strong from the start, and the addiction is hugely powerful once it has set in. The Court's message, through its sentence, must therefore be strong. [ 80 ] I reject the defence submission that Mr. Willness’ self-induced intoxication reduces the moral culpability of his actions. As the Court of Appeal said at para. 39 of Badhesa : [39] Intoxication by alcohol or drugs often figures prominently in manslaughter cases.

While relevant to moral culpability, self- induced intoxication that leads to violence is typically the product of intentional risk-taking, which conduct is itself dangerous, irresponsible and blameworthy. In such circumstances, the offender is held fully accountable for his or her condition and principles of deterrence and denunciation are paramount in the determination of a fit sentence. This is because the offending conduct encroaches on our society’s basic code of values and warrants condemnation and punishment: Green at paras. 16, 19, 23. [ 81 ] That statement is fully applicable to Mr.

Willness who, having been released only hours before from the drunk tank, chose to get drunk again. His self-induced intoxication played a crucial role in his risk-taking, aggressive, and violent behaviour that night. It was morally blameworthy. [ 82 ] Mr. Willness’ use of his skateboard as a weapon was aggravating, particularly his knowledge of the harm that could be caused by hitting a person with a skateboard. I agree with the Crown that this is not a “one-punch” case. Mr. Willness struck twice at Mr. Young, the second time bringing his skateboard down on his head with considerable force while Mr.

Young was in a very vulnerable and defenceless position. While not as egregious as the degree of violence seen in some of the cases, it is aggravating. [ 83 ] I also reject the defence submission that provocation played a role in Mr. Willness’ conduct that reduces his moral culpability. It was Mr. Willness, not Mr. Young, who was looking for a fight that night. Mr. Young was trying to intervene to stop Mr. Willness’ offensive behaviour. Nothing Mr. Young did constituted provocation that would reduce Mr. Willness’ moral culpability. [ 84 ] I next consider the application of Gladue principles to Mr. Willness. Mr.

Willness has Indigenous heritage. He is entirely disconnected from that heritage, but the decision of Marchand J.A., as he then was, in R. v. Kehoe , 2023 BCCA 2 [ Kehoe ], makes clear that that does not mean that Gladue principles have limited application.

[ 85 ] At para. 46 of Kehoe , Justice Marchand wrote: [46] In many cases involving the sentencing of Indigenous offenders, Canada’s assimilationist policies have been so successful that the offender may be largely or completely disconnected from their Indigenous culture, community and support: Hamer at para. 115.

In such cases, an obvious tension arises in the task of balancing (1) the well-known principle that it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue with (2) the requirement that it is nevertheless necessary to “evaluate relevant information about the significance of a person’s Indigenous identity and the individual’s circumstances as an Indigenous person”: Hamer at para. 117 . [ 86 ] At para. 49, Marchand J.A. also made clear that Gladue principles do not apply simply because an offender is Indigenous.

He stated that: [49] . . . it is the adverse impact of Canada's colonial history and assimilationist policies, if any, on a particular Indigenous offender that matters. . . . [ 87 ] As stated at para. 56: [56] Disconnection is one of the very harms associated with Canada's colonial history and assimilationist policies that Gladue and Ipeelee seek to address. . . . [ 88 ] In the present case, it was the United States’ history of assimilationist policies, and not those of Canada, which caused Mr. Willness’ family's disconnection from their Cherokee heritage.

I am not aware of any binding authority on point, but in my view that matters not in considering how Gladue principles apply to Mr. Willness. The more difficult question in the case at bar is determining the role that that disconnection played in Mr. Willness coming before the court. [ 89 ] I take judicial notice that there is an inherent harm in being disconnected from your ancestral heritage and culture. Mr. Willness would undoubtedly have benefited from being connected to his Indigenous heritage growing up. Mr.

Willness’ family was afflicted by many of the same harms that Indigenous people and families too often experience: the sexual assault of his young mother leading to his conception, his unstable upbringing, and his own early and chronic misuse of alcohol. Mr. Willness need not prove a direct causal link between his family’s disconnection from their heritage and those adverse experiences. The court does, however, have to consider how those two things may have been related. [ 90 ] In comparison to many of the cases cited by counsel, the relationship between Mr.

Willness’ disconnection from his Cherokee heritage and his life circumstances is less than obvious. Absent from Mr. Willness’ life are the horrendous intergenerational effects of Canada's racist Residential School System, as exemplified in cases like R. v. Touchie , 2015 BCSC 1833 [ Touchie ], the Smith 2017 decision, Jack , and Harry . Mr. Willness’ mother and his grandparents did not suffer from alcoholism or other substance use problems, and they did not abuse him. [ 91 ] I do not minimize the very significant challenges Mr. Willness faced growing up.

His mother gave birth to him far too young and he experienced instability as a result. He reports that two of his mother’s partners were abusive. He appears to have suffered, from an early age, from substance abuse and mental health challenges. Considering the evidence, however, I do not think that there is a strong relationship between those challenges and Mr. Willness’ disconnection from his Cherokee heritage. [ 92 ] I do, however, think that there is a very strong relationship between the challenges Mr. Willness faced growing up and the offence which brings him before the court.

His alcoholism and his pattern of inability to deal with frustrations and to manage his anger are integrally related to his troubled childhood and they are what led to him causing Mr. Young’s death. In this regard, I am reminded of the comments of Justice Lebel in R. v. Ipeelee , 2012 SCC 13 at para. 77 where he said: . . . there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders. Quite the opposite . . .

"background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender". [ 93 ] In the end, regardless of the strength of the connection between Mr. Willness’ disconnection from his Cherokee heritage and his adverse childhood experiences, I have no difficulty finding that those adverse childhood experiences played a very significant role in his offending behaviour. His mother and his grandparents did their best to help Mr. Willness, but he was unable to accept their help or the help of the mental health system that they introduced him to.

As a result of his behaviour, they were unable to manage him at home and he became homeless. He experienced suicidal ideation and he drank alcohol and used other substances as a coping mechanism. He is an alcoholic and he was intoxicated by alcohol when he caused Mr. Young's death. Those factors do reduce to some degree his moral culpability for the very serious offence he committed. [ 94 ] I deal next with the defence submission that a conditional sentence order (“CSO”), would be appropriate in this case. If I sentence Mr.

Willness to a sentence of two years less a day or a sentence less than that, a CSO is a legally available sentence for manslaughter, and I am bound to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances. [ 95 ] A CSO was sought and rejected by the court in both McGoran and Harry . Like the court in both of those cases, I have concluded that a CSO would be unreasonable. Given the gravity of the offence he committed, Mr.

Willness’ degree of moral culpability, and with due consideration of the mitigating and aggravating factors, a CSO would be inconsistent with the fundamental purposes and principles of sentencing. As stated by Mr. Justice Joyce at para. 35 of McGoran , the imposition of a CSO in this case would not contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It would not provide sufficient denunciation or general deterrence. [ 96 ] Having determined that a term of imprisonment is required, I must determine the length of the sentence to impose.

No two cases are alike and none of the cases referred to and relied upon by counsel, many of which I have already referred to in the course of these reasons, is identical to Mr. Willness and the offence he committed. Many of them involved a guilty plea, including Newton , Creagh ,

Halverson , Smith 2017 , Smith 2019 , Harry , McGoran , Jack , Morris , and R. v. Stanford , 2017 BCSC 530 . Many of them involved significantly younger offenders, such as Morris , McGoran , Jack , and Smith 2017 . Those four cases that I just referred to resulted in sentences of one year, two years less a day, three years, and three years and two months respectively. [ 97 ] I have found Harry , Halverson , Creagh , and Newton to be useful comparator cases. The sentences in those cases were five, five and a half, seven, and seven years respectively. [ 98 ] I would place Mr.

Willness’ moral culpability at the lower end of those cases, perhaps most similar to the offender in Harry . The assault in that case was more brutal than in the case at bar, and the offender had a worse criminal record. However, Mr. Harry’s Gladue factors were especially egregious and he had pleaded guilty. The offenders in the two cases are similar in age and they both suffered from substance abuse. They were both intoxicated at the time of their offences and they had both taken steps to address their substance abuse issues since committing their crimes.

Both of them exhibited sincere remorse for their crimes. [ 99 ] Mr. Willness, taking all of the circumstances into account, including the gravity of your offence, the harm you caused, your reduced moral blameworthiness, the mitigating and aggravating circumstances, and the relevant objectives of deterrence, denunciation, and rehabilitation, and giving due weight to the principle of restraint, I sentence you to five years' imprisonment less time served. [ 100 ] As of December 19, 2023, counsel agreed that you had served 247 days. Since then, you have served an additional 23 days, for a total of 270 days.

Giving you credit for time served at time and a half, I calculate that you are entitled to 270 days times 1.5 for a total credit of 405 days served. I will certainly hear from counsel if they do not agree with that calculation. [ 101 ] I also grant the mandatory orders sought by the Crown, namely a DNA order pursuant to s. 487.051 of the Code , and a lifetime firearms prohibition pursuant to s. 109 . [ 102 ] Mr.

Willness, I wish you continued success in your recovery and in your rehabilitation. [ 103 ] I thank counsel for their very great assistance throughout this trial and sentencing and, subject to any matters that I need to address from counsel, that concludes my reasons for decision. [DISCUSSION RE TIME SERVED AND REMAINING TO BE SERVED] [ 104 ] This results in three years and 325 days remaining to be served. [ 105 ] THE COURT: Anything further, counsel? [ 106 ] CNSL C.-A. PINE: No, Justice. [ 107 ] THE COURT: All right, thank you. [ 108 ] CNSL T. FORSS: Thank you, Justice. [ 109 ] THE COURT: Thank you, Mr.

Willness. “L.M. Lyster J.” LYSTER J.