R. v. Harper, 2021 MBPC 47

CITATION: R. v. Harper, 2021 MBPC 47 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) N. Steen ) A. Wood ) for the Crown ) and ) ) ) Byron William Harper ) W. Marks ) for the Accused Accused ) ) ) Reasons for Decision: ) Delivered: September 27, 2021 DEVINE, P.J. INTRODUCTION [1] Byron Harper is a 31-year-old Indigenous man whom I convicted of residential break and enter commit assault and of possession of a weapon for a purposedangerous to public peace. This is my sentencing decision. [2] The principles enunciated by the Supreme Court of Canada in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13animate this decision because Mr. Harper is an Indigenous person. The offence is serious, however Mr. Harper’s moral culpability in committing the offences wasimpacted significantly by his circumstances as an Indigenous person. The difficult task of determining a fit and proportional sentence for Mr. Harper follows. [3] The victims of the break and enter had their back door kicked open and they were bear sprayed by Mr. Harper’s co-accused in this offence. Mr. Harperwas a party to these offences, but in charge. He has a serious criminal record.

But his life as an Oji-Cree person from the remote community of St. Theresa Point andthen Winnipeg has coloured everything. He has also shown considerable remorse for the offence and has made significant efforts and shown good potential forrehabilitation and reintegration into the community over the past 16 months since his pretrial and presentence custody began. [4] The Crown is seeking a penitentiary sentence of five years, citing the need for denunciation and deterrence and parity with similar offences. The defence isseeking a sentence of three years plus probation.

Both counsel agree that the custodial sentence should be reduced by the time Mr. Harper has been in custody onremand status. The effect of the defence recommendation would allow Mr. Harper to finish his sentence in the provincial facility, to continue the work he has donewith the psychologist and other staff and to continue on his rehabilitative path. FACTS [5] On April 4, 2020, Mr. Harper and three friends were doing methamphetamine and then decided to walk over to the local pizza place to eat. On the waythey encountered a Burmese immigrant, Mr. Saw. There was some negative interaction between Mr.

Harper’s group and Mr. Saw that resulted in Mr. Saw walkingor running home with Mr. Harper’s group in pursuit. He got into the back door of the house he shared with his cousin and cousin’s family and quickly bolted it. There were several others including several children at the home that day, as it was Sunday and everyone was eating and visiting. B.S. the youth co-accused, kickedmethodically at the door with Mr. Harper encouraging him, until it broke open. Mr. Wood and the fourth person never charged in this matter, were in the alleywatching, with Mr. Harper motioning to them to come over.

Just as the door was breached, Mr. Wood ran up the back stairs between Mr. Harper and B.S. andsprayed bear spray into the house. Although Mr. Harper stepped forward to get into the house, he was thwarted by the occupants who were brandishing a snowshovel at them. The Harper group left. [6] Mr. Saw and his cousin were directly hit with the bear spray and the entire household was contaminated with it. Police officers who attended laterdescribed the smell and its effects as “aggressive.” The smell was so strong that they had to interview all the occupants outside, even though it was cold outside inearly April.

SENTENCING: IT’S PURPOSE, GUIDING PRINCIPLES AND OBJECTIVES [7] Any sentencing decision must be understood within the context of the purpose of sentencing, which is set out in detail in the Criminal Code. [8] The fundamental purpose of sentencing as set out in Criminal Code s. 718 is to protect the public and to contribute to respect for the law and themaintenance of a just, peaceful and safe society. This is accomplished by imposing just sanctions that have one or more objectives.

Those objectives includedenouncing unlawful conduct and the harm done to victims, deterring the offender and others from committing offences, separating offenders from society wherenecessary, rehabilitation, reparations for harm done to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of theharm done to victims or the community. [9] Several of the sentencing objectives in this case are relevant: denunciation and deterrence, reparations and promoting a sense of responsibility in offendersand acknowledgement of the harm done to victims or the community.

Rehabilitation also plays a role in this offence because of the prospects for rehabilitationdemonstrated by Mr. Harper.

[ 10 ] The fundamental principle of sentencing is proportionality – the sentence imposed must be proportional to the gravity of the offence and the degree of responsibility of Mr. Harper. [ 11 ] In R. v . Nasogaluak , 2010 SCC 6 , the Supreme Court of Canada outlined the purpose and underlying philosophy of sentencing in Canada as set out in

Part XXIII of the Criminal Code . The decision provides direction and guidance on the interaction between the purpose of sentencing and its objectives, its fundamental principle and the secondary sentencing principles set out in ss. 718 to 718.2 of the Criminal Code . [ 12 ] The sentencing provisions of the Criminal Code came into force September 3, 1996 and were in part a codification of the existing purpose, objectives and principles in sentencing in Canada. But it went much further than that, particularly with respect to Indigenous offenders.

Section 718.2 (

e) reads: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders [ 13 ] As the Supreme Court held in Gladue , subsection 718.2(

e) of the new, 1996 provisions is remedial: In our view, s. 718.2 (

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case … . (at para. 33) SENTENCING INDIGENOUS PEOPLE s. 718.2 (

e) creates a judicial duty to give its remedial purpose real force (para. 33, Gladue ) [ 14 ]

Section 718.2 (

e) was enacted to change the way in which Indigenous people are sentenced, to “reduce the tragic overrepresentation of aboriginal people in prisons.” It is only by taking into consideration the unique circumstances of Indigenous people, that is, by taking into account their difference, that they can be treated fairly in the criminal justice system. ( Gladue , at para. 88 ) [ 15 ] Sentencing judges are reminded that: . . . it must in every case be recalled that the direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system.. . . ( Gladue , at para. 88 ) [ 16 ] Counsel for Ms.

Gladue expressed their fear that the

section might come to be interpreted and applied in a manner that would have no real effect upon the day to day practise of sentencing Indigenous people in Canada. Justices Cory and Iacobucci stated that this was unfortunately a reasonable fear, given the “tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system.” But they stated that the subsection creates a judicial duty to give its remedial purpose real force. ( Gladue , at para. 33 ) [ 17 ] The reason that subsection 718.2(

e) specifically referred to Indigenous offenders was because of the “acute problem” of the disproportionate number of Indigenous offenders in prison in Canada ( see Gladue at para. 50 ). In committee hearings for the Bill enacting s. 718.2 (e), in 1994, Justice Minister Rock referred to the Manitoba Aboriginal Justice Inquiry (AJI: Commissioner A.C. Hamilton and C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol.

I) which found that although Indigenous persons made up 12% of the population of Manitoba, they comprised over 50% of prison inmates. In Ipeelee , Justice LeBel cited the report itself, noting the rising incarceration rates of Indigenous people from 22% in 1965, to 33% in 1984 and up to 46% in 1989 (at para. 57). [ 18 ] By 2012 when the Supreme Court decided Ipeelee , the situation for Indigenous offenders had worsened. Between 1996 and 2001, while non-Indigenous admissions to custody declined by 22%, the incarceration rate for Indigenous offenders increased by 3% - 4% nationally.

As Professor Rudin is quoted asking the Court in Ipeelee , “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?” (at para. 62) [ 19 ] As defence counsel in this case stated in his argument, the situation become more critical since Ipeelee . I take judicial notice of the fact that the overwhelming majority of accused persons in the Provincial Court of Manitoba are Indigenous. That percentage unfortunately does not drop after conviction and sentencing.

Counsel quoted the Winnipeg Free Press as stating that in April 2021, Indigenous offenders represented 70% of the prison population at Stony Mountain Institution, Manitoba’s federal penitentiary. There is no reason to expect that the percentage is very different in the provincial jails. [ 20 ] The tragedy does not end with the number of incarcerated Indigenous people in Manitoba, but with incarceration’s “peculiarly devastating impact upon Canada’s aboriginal peoples. . . “( Gladue , at para. 51 ). Quoting at length M. Jackson’s

article Locking up Natives in Canada (1988-89), 23 U.B.C. L. Rev. 215, the Supreme Court in Gladue adopted the statement that prison has become for many young Indigenous people what residential schools were in the past (at para. 60). [ 21 ] The Supreme Court of Canada in Gladue strongly questioned the efficacy of incarcerating such a significant proportion of sentenced offenders for the purpose of reducing crime, recidivism and achieving the just, peaceful and safe society which our sentencing scheme endeavours to support ( Gladue , at paras. 52 – 57 ).

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. Over incarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in

Part XXIII, and s. 718.2 (

e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. (at para. 57) [ 22 ] The

section of Gladue entitled “The Overrepresentation of Aboriginal Canadian in Penal Institutions” is strongly worded. Saskatchewan and Manitoba are featured as the provinces with the most disproportionate number of Indigenous people incarcerated. The statistics are included as likely to “shock the conscience of everyone in Canada” (at para. 60). That was in 1999. [ 23 ] Most of the Indigenous offenders appearing in the Manitoba Provincial Court have suffered from similar circumstances due to the history of colonialism and residential schools in this province.

There can be a tendency to cite “the usual Gladue circumstances” which must be guarded against. As Justice Steel stated in R. v. Park , 2016 MBCA 107 : . . . A sentencing judge should never become complacent about expressly considering an Aboriginal offender’s personal circumstances and background, even where the local context involves daily dealings with Aboriginal offenders who have similar personal circumstances and backgrounds . See R v Oakoak (T) , 2011 NUCA 4 at paras 24-25 , 510 AR 379 . (at para. 33)(Emphasis added.) [ 24 ] Every Indigenous community in Manitoba has a unique history.

There are seven distinct Indigenous language and cultural groups in Manitoba. The history and impacts of resource development, agriculture, private property development and residential schools have had distinct impacts on different communities. Many Indigenous peoples historically from these many communities now live in Winnipeg, which also brings its own culture and difficulties.

While there are commonalities in the experience of being Indigenous in Manitoba, there are differences between Indigenous peoples because of their particular cultural and geographical roots and of course, their individual histories. [ 25 ] The Supreme Court’s direction to sentencing judges could not have been more clear in Gladue :

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairlybe termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and thecriminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinctsentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction tomembers of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencingprocess. (at para. 64) (Emphasis added) [26] The requirement of judges to address these problems was reiterated in Ipeelee:

Section 718.2(

e) is therefore properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to theextent that a remedy is possible through the sentencing process” (Gladue, at para. 64 (emphasis added)). Applying the provision does not amount to “hijacking thesentencing process in the pursuit of other goals” (Stenning and Roberts, at p. 160).

The purpose of sentencing is to promote a just, peaceful and safe society throughthe imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle ofproportionality. Just sanctions are those that do not operate in a discriminatory manner.

Parliament, in enacting s. 718.2(e), evidently concluded that nothing short of aspecific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly. (at para.68) [27] Since the “findings” of the several commissions and inquiries predicating the Criminal Code amendments and Gladue and Ipeelee, there has been one morecommission. The Truth and Reconciliation Commission (TRC) dwarfs all the earlier commissions and inquiries into the history and oppression of Canada’sIndigenous peoples.

It has literally changed Canadian society on all levels, including in government, the private sector, culture, education and industry to name a few. [28] Significant efforts have been made and continue to be made throughout the criminal justice system to respond to the recommendations of the TRC, throughrelationship-building and meetings between justice system participants and Indigenous peoples. Many of these efforts are “starting from scratch.” [29] One area where it is unnecessary to start from scratch however is in sentencing.

In Gladue, the Supreme Court set out “A Framework of Analysis for theSentencing Judge”. Paragraph 65 of Gladue states: It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminaljustice system. . . . . What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples inCanada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

Theydetermine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger rolein restoring a sense of balance to the offender, victim, and community, and in preventing future crime. (Emphasis added) [30] If it was not clear in Gladue that the process of sentencing Indigenous people had to be different than the process of sentencing other offenders, it becamevery clear in Ipeelee.

Justice LeBel noted no discernible impact on the overrepresentation of Indigenous people in the criminal justice system subsequent to Gladue,due in part to courts’ misunderstanding and misapplication of the principles from that case.

The Ipeelee decision was specifically designed to resolve anymisunderstandings, clarify ambiguities and provide additional guidance so that courts could properly implement s. 718.2 (e) (Ipeelee at para. 63). [31] Ipeelee starts from the frank and grim baseline that the disproportionate number of Indigenous people in jails and prisons stems in part from the fact thatthey commit more crimes and that they are victims of a discriminatory justice system.

As to the former, the Supreme Court recognized that the levels of criminalityamong Indigenous people “are intimately tied to the legacy of colonialism” (Ipeelee, at para. 77). But, the Supreme Court held that addressing these matters does notlie beyond the purview of sentencing (at para. 65). The Court directed that sentencing judges can address these matters in two ways. [32] First, sentencing judges can endeavour to reduce crime rates by Indigenous people by imposing sentences that effectively deter criminality and rehabilitateoffenders.

Where the sentencing practises do not further those objectives, “those practises must change” (at para. 66). Secondly, sentencing judges must beware ofinadvertently incarcerating persons who are unemployed, poor, transient, poorly educated and drug-addicted, which are systemic problems experienced by Indigenouspeoples (at para. 67). [33] Ipeelee is a blueprint for sentencing Indigenous offenders.

The analytical work takes place within the overarching principle in Canadian sentencing,proportionality, that is, that a sentence must be proportional to the seriousness of the offence and the moral culpability of the offender in committing the offence. [34] What follows is a discussion of proportionality generally and within context of sentencing Indigenous people.

PROPORTIONALITY [35] In Nasogaluak, Justice LeBel explained what proportionality means in the context of sentencing, as follows: For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In thissense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle of proportionality is counter-balanced by its alignment withthe "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects andcondemns their role in the offence and the harm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.), at para. 81; Reference re s. 94(2)of the Motor Vehicle Act (British Columbia), (SCC), [1985] 2 S.C.R. 486 (S.C.C.), at pp. 533-34, per Wilson J., concurring).

Understood in this lattersense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., MakingSense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of theoffence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectiveson proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to thenature of the offence and the circumstances of the offender. . . (at paras. 42- 43) (Emphasis added.) [36] The Supreme Court in Gladue stated that: . . . .

The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and thelack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is moreinclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.

There are many aspects of this sad situation which cannot be addressed inthese reasons... (at para. 65) The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economicdevelopment have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education,substance abuse, loneliness, and community fragmentation.

These and other factors contribute to a higher incidence of crime and incarceration. . . . the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination,many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions... (at paras. 67-68) (Emphasis added) [37] The Supreme Court reiterated the central role of proportionality in sentencing in Ipeelee, stating that a sentencing judge must consider the unique systemicand background factors that have played a

part in bringing the offender before the courts. It is intrinsic to the proportionality analysis fundamental to the law ofsentencing. (Ipeelee at para. 87) The decision was a follow-up and stern reminder to Canadian sentencing Courts that where the person is Indigenous, theproportionality analysis takes on specific meaning:

. . . the logical meaning to be derived from the special reference to the circumstances of aboriginal offenders, juxtaposed as it is against a general direction to consider"the circumstances" for all offenders, is that sentencing judges should pay particular attention to the circumstances of aboriginal offenders because thosecircumstances are unique, and different from those of non-aboriginal offenders. (Gladue, at para. 37) [38] As Justice LeBel stated at paragraph 73 of Ipeelee, there is a two-part analysis that is required in

section 718.2(e). The first part of that analysis determineshow the Indigenous person’s background impacts the proportionality analysis: 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 of moral blameworthiness. . . .. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positivedevelopment.

While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminalsanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para.60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, [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 account would violate the fundamentalprinciple of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of And in Gladue: responsibility of the offender.(Emphasis added) [39] As the foregoing makes clear, sentencing Indigenous people represents a shift in methodology.

The circumstances of being Indigenous, sometimes referredto as “Gladue circumstances” are not to be considered merely “mitigating factors” under s. 718.2(a), which reduces or increases a sentence to account for anyaggravating or mitigating circumstances relating to the offence or the offender. The reality of being Indigenous is fundamental and is to be taken into account inassessing the moral culpability of the offender in the fundamental sentencing principle of proportionality. 1.

The Offences [40] Sentences for residential break and enters are generally significant, owing to the seriousness of violating the safety and privacy of one’s home. When anassault and weapons are involved, the sentence is generally increased. [41] Typically, the objectives being engaged by break and enters and assaults in people’s homes are deterrence and denunciation.

These objectives are notmandated as the main objectives in the Criminal Code sentencing scheme, unlike offences involving abuse of children (s. 718.01), and even where denunciation anddeterrence are primary objectives, the Court must still conduct the proper analysis when sentencing an Indigenous offender. As the Supreme Court noted in R. v.Friesen, 2020 SCC 9 at para. 104: . . .

However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weightto other factors (including rehabilitation and .Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle ofproportionality (see R. c. Bergeron, 2013 QCCA 7 (C.A.

Que.), at para. 37 ).(Emphasis added) [42] Because the proper analysis of sentencing Indigenous people involves considering their circumstances as Indigenous people not simply as mitigatingpersonal factors, but rather as circumstances that have affected their moral culpability and contributed to their criminal behaviour, the objectives of denunciation anddeterrence do not “trump” other important sentencing principles. [43] In this case, the victim was chased or followed by Mr. Harper and the three others after either a drug deal gone badly or an insult.

He and the youngoffender went onto the victims’ back step and Mr. Harper watched, supervised and encouraged the young offender who kicked open the door with powerful kicks. Once the door was almost breached, Mr. Harper gestured towards Mr. Wood and another in the back alley and Mr. Wood ran into the yard and onto the step holdingout a canister of bear spray, which he sprayed into the house. The victim and his cousin deterred the offenders from entering any further with a snow shovel. [44] None of the victims filed formal victim impact statements, but two of the victims testified at trial.

The effects of the door being kicked and the bear sprayaffected not only the two adult victims who testified. It was a Sunday afternoon and the house was full of family, friends and children visiting. The break in wouldhave been terrifying for the people in the house. Mr. Sheller testified that his children were scared and crying. On the video of the offence filed as an exhibit in thetrial a woman could be heard screaming from inside. The bear spray affected Mr. Saw most significantly as he was hit with it and Mr. Sheller was partially hit, as hewas behind his cousin, but it also affected the entire household.

Police described the smell as “aggressive.” Mr. Sheller described feeling cool, then hot and then hewas temporarily blinded. He felt burning in his eyes for hours. Both men testified to being frightened at the time and were still frightened. It bears repeating that thefacts of these offences are extremely serious. 2. The Offender [45] Mr. Harper is a 31-year old Oji-Cree man from St. Theresa Point First Nation in north eastern Manitoba on Island Lake. St.

Theresa Point is a remote, fly-incommunity except during a brief period in the coldest winter months when the winter road is open to bring up building supplies, machinery and staples to thecommunity. [46] His life and that of his family in previous generations and this generation are impacted significantly by the effects of colonialism and Catholic residentialschools. A sentence that does not fully take account of his particular circumstances as an Indigenous person would not be fit and appropriate.

The legacy ofcolonialism, among many other effects, has led to him being in conflict with the law many times since his youth. He joined a gang, which is “intimately tied to thelegacy of colonialism” (Ipeelee at para. 77) He has a serious record. His lengthy record of convictions and jail sentences must be seen within the context ofunderstanding his circumstances as an Indigenous man in Manitoba. Paragraph 67 of Gladue is an imperative to treat his history of incarcerations as something otherthan his free will to commit violent crime: ...

A disturbing account of these factors is set out by Professor Tim Quigley, "Some Issues in Sentencing of Aboriginal Offenders", in Continuing Poundmaker andRiel's Quest (1994), at pp. 269-300. Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting (atpp. 275-76) that "[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment.

When the social, political and economic aspects of oursociety place Aboriginal people disproportionately with the ranks of the latter, our society literally sentences more of them to jail." [47] The Island Lake peoples adhered to Treaty 5 in 1909.

Treaty 5 had been negotiated among most of the peoples north of Lake Winnipeg starting in 1875-76.In exchange for cession of the lands on which they lived, the peoples of Treaty 5 were to be given a one time payment of $5.00 per person, 160 acres of reserved land for each family of five for the purpose of farming (less for smaller families), and that the Indigenous peoples could continue hunting and fishing on the ceded lands,with the caveat that the government could in the future use the lands for development or public works, as long as the signatories were compensated, maintain schoolsand control liquor traffic. (https://www.thecanadianencyclopedia.ca/en/article/treaty-5#:~:text=Treaty%205%20%E2%80%94%20also%20known%20as%20the%20Winnipeg,as%20well%20as%20portions%20of%20Saskatchewan%20and%20Ontario) [48] The wording of Treaty 5 with respect to education and liquor control is as follows: And further, Her Majesty agrees to maintain schools for instruction in such reserves hereby made as to Her Government of the Dominion of Canada may seemadvisable, whenever the Indians of the reserve shall desire it.

Her Majesty further agrees with Her said Indians, that within the boundary of Indian reserves, until otherwise determined by Her Government of the Dominion ofCanada, no intoxicating liquor shall be allowed to be introduced or sold, and all laws now in force, or hereafter to be enacted, to preserve Her Indian subjectsinhabiting the reserves, or living elsewhere within Her North-west Territories, from the evil influence of the use of intoxicating liquors, shall be strictly enforced.(Emphasis added)

[ 49 ] Historically, there were no schools for instruction in the Catholic community of St. Theresa Point. I am aware from my six years as a judge in the Island Lake area that children in the Island Lake area were sent far away to residential schools, such as Portage la Prairie, away from their families, the north, the land, their culture and language. Knowledge about the legacy of residential schools continues unfold in Canada and it is both profound and disturbing. [ 50 ] During the years Mr. Harper lived in St. Theresa Point, education was not a priority and few students graduated.

He has a grade eight education. Much of his school years were in Winnipeg, where he went to many different schools sporadically, leading to incomplete assignments, poor grades, suspensions and fighting. [ 51 ] Mr. Harper’s family was all but destroyed by alcohol. Both his parents used alcohol to excess, neglecting and leaving the seven children alone and unsupervised, who often had to go into emergency foster care. Mr. Harper witnessed significant domestic violence between his parents. He moved between different family members mainly in St.

Theresa Point, but went to live with his mother in Winnipeg permanently in 1995. One of his paternal aunts interviewed for the PSR recalled that when Mr. Harper turned nine years old and was staying with her, she had a birthday party for him and he told her he had never had a birthday party before. [ 52 ] Mr. Harper’s mother has only recently disclosed that her own addiction to alcohol affected her son in utero . Both she and Mr. Harper’s sister Bonnie Harper, who is a positive influence, are convinced that Mr. Harper is FASD-affected. Mr. Harper does not have an FASD diagnosis.

He is over the age of 25, so he cannot obtain an FASD assessment in Manitoba. As the defence argued, the barriers that prevented him from obtaining the diagnosis before now are as a result of his Indigenous circumstances: his mother’s own ongoing addiction, poverty, isolation of the Island Lake communities, and lack of assessment resources in those communities. Ongoing systemic racism prevents him from getting a diagnosis which could have a significant effect on his sentence.

If he had a diagnosis, he could be sentenced in the specialized FASD Court, which involves specialized Crown attorneys and judges who have studied FASD and who receive FASD-specific reports in Court to ensure that moral culpability is properly assessed due to FASD. [ 53 ] Mr. Harper and his family have been affected by many other of the most difficult circumstances that many Indigenous people experience. His home on the reserve was in the part of the community without running water and suitable housing. Unemployment was high. [ 54 ] He has been affected by premature deaths of many family members.

In 2002 when he was 12 years old his father died of a heart attack. That same year his oldest brother died by suicide. He does not know his younger brother because he was adopted at birth and lives in Quebec. In 2006 when he was 16, he accidentally shot and killed his best friend. The Pre Sentence Report (PSR) states, . . . he still has flashbacks and nightmares about this event. He has not been able to forgive himself and informed he uses substances so he does not have to remember or feel his grief and shame. . . . Mr.

Harper stated he has never really dealt with these losses and feels after these occurred he “gave up” and began to get into trouble with gangs, criminal activity and substance use. [ 55 ] He joined a gang at a young age which was normalized in St. Theresa Point. The gang life gave him a sense of family, but he did not like who it made him become. He was also the victim of a shooting when he was 20 years old, and he lost friends due to murder and drug overdoses. He is no longer a gang member and Probation Services determined in 2019 that he not longer met the criteria for gang membership.

His former probation officer Nicole Andrews opined that he should no longer be viewed through the lens of being a gang member. [ 56 ] His substance abuse is generational, was normalized in his family and started early. His mother gave him Nyquil to get him to sleep when he was young. He started experimenting with alcohol and drugs when he was 12, after his father’s death, quickly developing an addiction to painkillers like OxyContin. By the time of the offences involved in this case, Mr. Harper was a long-term methamphetamine addict.

He testified that he has been addicted to methamphetamine since he was 24 years of age; he was an intravenous user of methamphetamine. [ 57 ] His own family dysfunction and separation continues in his children’s generation. He has three young children who live with their mother. He has never met his five year old daughter. He wants to be sober before he sees them and he does not know how to be a father to his children but he would like the opportunity to try. [ 58 ] He knew nothing of his Oji-Cree, Island Lake culture, traditions and spiritual beliefs. His parents did not teach him Oji-Cree.

He did not learn the fishing skills of his father. He has learned about Indigeneity in jail, where he attends the sweat lodge when it is offered and he smudges several times a week. Ms. Andrews also discussed the common phenomenon of Christian churches moving into isolated communities where the people were more vulnerable to their complete control, in the case of St. Theresa Point, the Catholic church, which remains a strong force, notwithstanding the abuses of the Church, which have turned some people away. [ 59 ] He has serious, diagnosed psychological conditions and is under the care of a psychiatrist, Dr. D.

Globerman, and psychologist, Mr. Ashley Fleming. His diagnoses are Anxiety Disorder with features of Panic Disorder and Post Traumatic Stress Disorder (PTSD), Methamphetamine Use Disorder and Antisocial Personality Disorder. [ 60 ] Mr. Harper’s moral culpability cannot be fully understood without understanding where he grew up and where and how he has lived these 31 years.

His circumstances were constrained by alcoholism, drug addiction, poverty, dislocation and displacement, mental illness, likely FASD, racism, and lack of place, language and culture. [ 61 ] His criminal record must be seen within that context; it is part and parcel of the legacy of colonialism. His record began as a youth and included a weapon offence and then the tragic cause death by criminal negligence where his best friend was shot and died.

There was a gap in his record from 2007 to 2010, when his adult record commenced, involving pointing a firearm, uttering threats (x 2), carrying a concealed weapon (x 2) public mischief, assault peace officer (x 2), possession of drugs, and most recently, a robbery. He also has several breaches of probation on his record. [ 62 ] I found after the trial that he appeared to be the leader of the break and enter, egging on the co-accused youth kicking at the door and motioning for Mr. Wood to come forward out of the alley, which resulted in Mr. Wood discharging bear spray into the house.

But this was not a sophisticated operation. All three of the co-accused suffer from FASD or cannot get a diagnosis because of age in Mr. Harper’s case. Mr. Harper was an intravenous user of methamphetamine daily. Life for him was very small and constrained. His case is distinguished from that of the offender in R. v. Guimond , 2016 MBCA 18 relied on by the Crown. In that case, the offender was a member of the Indian Posse, which was defending its drug territory from a rival gang. Indian Posse members chased, beat, stabbed and killed a 16 year old from the rival gang.

The sentencing judge found that the accused’s moral culpability demonstrated “maintenance of a viable, sophisticated and highly profitable illegal drug trafficking business.” [ 63 ] It is a testament to Mr. Harper’s strong will and determination to do better that he has such a positive pre-sentence report, has been doing so well in custody and has the support of corrections workers in jail and Probation Services. It demonstrates that Mr.

Harper is truly remorseful and since he has been in custody, he has been very proactive in addressing his criminogenic factors. [ 64 ] He has been on an effective prescription drug regime while in jail, having a good response to the drugs and tolerating them well, according to his psychologist. [ 65 ] His corrections psychologist Mr. Fleming began working with Mr. Harper prior to these offences, when he was referred to Mr. Fleming by Winnipeg Remand Centre staff in 2017. Mr. Fleming was interviewed for the PSR and also filed his own letter with respect to Mr. Harper, and attended the sentencing hearing.

He stated that Mr. Harper initially presented as “very anti-social, verbally combative” and resistant to therapy. He was severely assaulted by another inmate at Milner Ridge Correctional Centre in 2017 and a suffered serious head injury including five facial fractures which required surgery. In the letter filed with the Court in this sentencing, Mr. Fleming described how he initially would not take on Mr. Harper as a client because he was “a lost cause.” Mr. Fleming stated that he was decidedly antisocial with no motivation for change.

Since then, he has achieved a level of psychological stability he had never previously achieved. [ 66 ] It appears that this severe assault represented a turning point in Mr. Harper’s ability and willingness to receive help. Mr. Fleming reported that when Mr.

Harper was returned to the Winnipeg Remand Centre, he presented with anxiety and PTSD and his attitude had changed significantly; he was distressed and wanted help. [ 67 ] An application to the Provincial Alternative Support Services (PASS) program by Mr. Fleming was pending at the time of the sentencing. The PASS is available to assist individuals whose mental impairment is not as severe as those who are considered to be vulnerable persons, but who still require some additional support. [ 68 ] The Unit Manager at Headingley described Mr. Harper as being easily influenced by others. [ 69 ] Mr.

Harper’s criminal record and the offences he committed on April 4, 2020 are therefore understood within the context of his history and circumstances as an Indigenous person. His moral culpability in committing those offences was significantly affected and reduced by those circumstances. OTHER SENTENCING PRINCIPLES 1. Parity in Sentencing [ 70 ] Sentencing of Indigenous peoples always requires an analysis that takes into account their unique circumstances as Indigenous people.

For example, the Supreme Court recognized that “unemployment” is different for an Indigenous person from a reserve where there are no job opportunities ( Ipeelee at paras. 78-79 ). The unique type of deprivation experienced by an Indigenous person by reason of their Indigeneity must always be brought into the parity analysis. [ 71 ] Moreover, similar treatment or a similar sentence does not have the same impact on everyone. Justice LeBel cited Professor Tim Quigley in Ipeelee as follows: It is true that on the surface imposing the same penalty for the nearly identical offence is only fair.

That might be closer to the truth in a society that is more equitable, more homogenous and more cohesive than ours. But in an ethnically and culturally diverse society, there is a differential impact from the same treatment . Indeed, that has been recognized in the jurisprudence on equality rights under the Charter. Thus, there is a constitutional imperative to avoiding excessive concern about sentence disparity . ( Ipeelee at para. 79 , citing T. Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in R. Gosse, J. Y. Henderson and R.

Carter, eds., Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269, at pp. 275-76) (Emphasis added) [ 72 ] In this case, the Crown filed several cases in which they argued that the offences and offenders are similar and which support their position for a five year penitentiary sentence. [ 73 ] One of the co-accused in this matter, Ethan Wood, was sentenced to 30 days as a result of a joint recommendation after pleading guilty to forcible entry on his first court appearance.

The case is not a useful comparator, because the Crown accepted a plea to forcible entry (rather than housebreak enter commit assault), and the sentencing judge did not have the advantage I have had of watching the video of the offences unfold. The sentencing judge also had information that the accused was 18 years of age and has an FASD diagnosis. Nonetheless, the excessive disparity between what the Crown sought by way of sentence in Mr.

Wood’s case and in this case is not entirely satisfactorily explained by the Crown. [ 74 ] The other co-accused, who was a youth at the time has also pleaded guilty; the outcome of his sentencing is unknown at this time. He was undergoing an FASD assessment prior to sentencing. [ 75 ] The Crown filed R. v.

Duerksen , 2012 MBCA 41 in which the Manitoba Court of Appeal recognized that two years will normally be a fit sentence on a residential break and enter, but that higher sentences could be expected where the offender knows that the residence is occupied and violence is used or threatened. [ 76 ] The Crown filed the case of R. v. Catcheway , 2013 MBPC 60 where the 23- year-old Indigenous offender was sentenced to four years. His circumstances as an Indigenous man were not unlike Mr.

Harper’s and he had just experienced the sudden, violent death of his sister-in law such that at the time of the offence he was extremely intoxicated and in shock. There are also distinguishing features that explain the four-year sentence for Mr. Catcheway. Most significantly, Mr. Catcheway had an unbroken record of break and enters; this was his eleventh conviction for break and enter. The violence and harm caused were more significant than in this case: Mr. Catcheway was only momentarily deterred at the door – he entered the house and proceeded to the second floor where the occupants were hiding.

He entered a bathroom and bear sprayed one victim in the face. The occupants jumped out of the second story window and had significant injuries. There were no mitigating circumstances found. He had made no efforts towards rehabilitation. [ 77 ] The Crown also relied on the decision of R. v. Spence , June 2, 2020 (Man.P.C.) where a six year sentence was imposed. Again, although Mr. Spence was an Indigenous man whose constrained circumstances were similar to Mr. Harper’s, and the break and enter bears some similarities, there are significant differences that make the case distinguishable. First and foremost, Mr.

Spence had made no efforts to change, had continued to be involved in violent and aggressive incidents in custody while on remand status and was considered by Probation Services not to be a candidate for community supervision. As a consequence, the primary sentencing objective was separation of the offender from society until he was amenable to rehabilitation. [ 78 ] Mr. Harper’s suitability for community supervision and imposition of a sentence with restorative features situation is more like R. v.

Peters , 2015 MBCA 119 , where the offender, a former gang member with a lengthy criminal record, pleaded guilty to trafficking in cocaine, but had made such significant efforts to change his life and lifestyle by the time of sentencing, that a suspended sentence and probation were imposed, which was upheld by the Court of Appeal. [ 79 ] A review of the cases supports a sentence in the three year range. 2. Aggravating and Mitigating Circumstances [ 80 ] It is aggravating that Mr. Harper was on probation and on judicial interim release at the time of these offences.

It is statutorily aggravating pursuant to Criminal Code s. 348.1 that he knew the house was occupied at the time of the break in. There were children present at the time of the offence and all the people were affected by the discharge of the bear spray into the house, particularly Mr. Saw and Mr. Sheller. Mr. Harper was the directing mind of the operation. He tried to enter the house, but was deterred by the occupants. [ 81 ] There are several mitigating circumstances as well. Even during his testimony at trial, he expressed remorse for the offence.

He was upset to learn there were children in the home and he felt bad for what he had done to Mr. Saw and Mr. Sheller. Mr. Harper expressed more remorse at the time of sentencing. He read into court a letter he wrote to me, which was filed as an exhibit. In it he stated: I want to say sorry to Mr. Shelieh (sic) and Mr. Saw for bringing such a terrible thing to their door step... they deserve to hear me say I’m sorry and I will never ever go near them or hold any kind of animosity towards that.

I promise! [ 82 ] The letter and his actions while on remand status and the reports from corrections officials all demonstrate his genuine remorse, his insight into his criminal behaviour and his genuine desire and proven steps to change his life to a sober, pro-social man. APPLICATION OF SENTENCING PRINCIPLES FOR INDIGENOUS PEOPLE IN THIS CASE: RESTORATIVE PRINCIPLES [ 83 ] I have already outlined the seriousness of these offences. As for Mr.

Harper’s moral culpability in them, I am satisfied that it can only be fully understood and appreciated by taking into consideration his circumstances as an Indigenous person. [ 84 ] The second part of the analysis required by s. 718.2(

e) and explained by the Supreme Court in Ipeelee is to consider what type of sanctions are appropriate, in terms of their effectiveness. Sentencing judges are directed to craft sentences in a manner that is meaningful to Indigenous peoples ( Ipeelee at paras. 74 and 75 ). [ 85 ] In its treatment of Mr. Ipeelee and Mr. Ladue in Ipeelee , the effectiveness of the sentence was forefront in the mind of the Supreme Court. Justice LeBel

discussed both men’s addictions and how a shorter jail sentence would allow a sufficient period of time of sobriety for them to get back on track and for correctional staff in a provincial setting sufficient time to find an appropriate community placement (see para. 93 and 96). [ 86 ] A similar approach, appropriate in my view, is proposed by the defence in Mr. Harper’s case. [ 87 ] In Mr. Harper’s case, the most effective sentence will be one that sends a message that the crime he committed must be condemned.

Break and enters, particularly in core area neighbourhoods in Winnipeg, have a deleterious affect on people’s sense of security. I note that the victims in this case were immigrants from Burma, particularly vulnerable on account of the foreignness of the language and community in which they found themselves. There were young children present, all of whom were affected by the crime and the effects of the pepper spray blasted into the house. [ 88 ] As far as general and specific deterrence, a sentence that addresses Mr.

Harper’s criminogenic factors, which in his case are his circumstances as an Indigenous person, will be most effective. [ 89 ] There is no support for the proposition that a lengthy penitentiary term will deter other Indigenous people like Mr. Harper from committing crimes like this one. [ 90 ] It is essential that the offender have some prospects for rehabilitation in order for a restorative sentence to be considered. Mr.

Harper has very positive prospects: • He is on a prescription drug regimen that is stabilizing him; • He has been receiving regular therapy from his psychologist and is “open and actively engaged in their therapy sessions”; • He has developed considerable insight into his life, his criminal history, his previous correctional history, his gang involvement and his addiction. His psychologist describes him as having made “tremendous strides” into gaining insight; • He also has good insight into what a penitentiary sentence might mean.

He fears for his safety going to the penitentiary as a former gang member and that he would be obliged to join a gang again. If that occurred, he did not think he would be able to come back from that to sustain the positive changes he has made to date; • He is motivated to change and accepts help from corrections staff; • Since he has been in custody on these charges since April 2020, he has worked hard to stay out of trouble and has only accrued one institutional charge, which is considered a significant improvement in behaviour.

The jail psychologist observes that he has not been the perpetrator in any violent incident and conversely, has been a calming influence on the unit, providing guidance to younger inmates so they do not make the same mistakes he did. Mr. Fleming went on to state: Headingley Correctional Centre staff routinely speak to both Mr. Harper and myself with surprise and encouragement, noting his improved behaviour. It is not uncommon of officers he has literally fought with in the past to provide him with positive affirmations on the changes he has made. • The Unit Manager at Headingley confirmed that Mr.

Harper is doing well which he credits to his compliance with his prescription medication, work with the psychologist and his conscious effort to talk things out with corrections staff; • Mr. Harper has earned a level of trust within the institution that allows him privileges outside his tier; • Both his Unit Manager at Headingley and his former probation officer stated that a supportive and encouraging approach work better for Mr.

Harper than inflexible enforcement or a heavy-handed approach; • If he remains in Headingley jail, he will retain his supportive placement in the Differential Needs Unit, “an environment that has proven to promote his positive change” (Mr.

Fleming); • His former probation officer stated that “he deserves to be seen through a different lens, he deserves a chance to succeed”; • He works as a barber in his unit at Headingley; • He has stated to plan for his release; • He is able to live with his sister Bonnie Harper, who is pro-social, successful and a positive influence on her younger brother after completing residential programming; • He has another pro-social, sober and supportive friend in the community; • The writer of the PSR has committed to being his probation officer if he is placed on probation. [ 91 ] All of these factors support a sentence that will support him on a restorative path.

Corrections officials confirm this approach, rather than a punitive approach. Mr. Harper’s relative youth and his hard and consistent work while in jail suggests that there is hope. I do not want to crush that hope by imposing a sentence that exceeds what is just and appropriate and does not punish him more than is necessary Nasogaluak (para. 42 ). [ 92 ] It is very unusual that the Court would receive such glowing reports and recommendations from corrections staff both within the institution, including psychological corrections services and Probation Services. [ 93 ] Mr.

Harper is forward-looking and has plans, and there are resources and supports available to him: • He recognizes that his sobriety will be the basis of his success, so wants to attend Teen Challenge directly upon his release and continue to work on his sobriety; • The PSR writer also suggested Pritchard House which employs a holistic concept of healing from addictions and which has both residential and outpatient programming; • Ogijiita Pimatiswin Kinamatwin (OPK) works with Indigenous men formerly involved with gangs and the criminal justice system, including connection to the Indigenous cultural community, ceremonies and Elders, accessing identification and driver’s licences, advocacy, after hour support, counselling, mediation, and support around housing, income, education, training and employment, and support around mental health and addictions; • Indigenous Services Canada Non-Insured Health Benefits Program provides medical care coverage for Indigenous people including mental health counselling services to complement other mental wellness services that he might be able to access in the community • He wants to achieve his GED; • He wants to work in the trades or as a forklift driver; • He wants to spend time with positive friends and family members; • He wants to go to the gym everyday

• He wants to learn about his culture, community and teachings SENTENCE [ 94 ] In returning to the Supreme Court’s direction in Nasogaluak about the central role and meaning of proportionality in sentencing, I believe the sentence sought by the defence is fit and appropriate. [ 95 ] The facts and sentence involved in Gladue is in itself instructive. Ms. Gladue stabbed her common law husband to death and pleaded guilty to manslaughter. She was sentenced to three years incarceration. Neither the sentencing court nor the Court of Appeal majority analyzed the sentencing decision properly taking into account Ms.

Gladue’s circumstances as an Indigenous woman. By the time the matter reached the Supreme Court however, she was living in the community with her father. She had served six months in a women’s correctional facility and then was granted day parole to live with her father, take alcohol and substance abuse counselling and comply with the requirements of the Electronic Monitoring Program. She achieved full parole within six months on the same conditions. The Supreme Court determined it would not be in the interests of justice to order a new sentencing hearing in order to canvass Ms.

Gladue’s circumstances as an Indigenous offender, because: In this case, the results of the sentence with incarceration for six months and the subsequent controlled release were in the interests of both the appellant and society. (at para. 98) [ 96 ] A three year custodial sentence followed by a period of probation properly reflects Mr. Harper’s moral blameworthiness and the gravity of the offence, including the harm to the victims, and gives effect to the objectives of denunciation, deterrence, rehabilitation, and acknowledgement of the harm done to the victims and the community.

The length of the jail sentence is restrained but significant enough to ensure Mr. Harper is held responsible for his actions and it condemns his role in the offence and the harm caused to the victims. [ 97 ] The sentence also takes into account and gives some meaning to imposing a sentence that is restorative. A sentence that does not take restorative principles of sentencing into account when sentencing an offender such as Mr. Harper runs afoul of the direction of the Supreme Court in Gladue and Ipeelee and Parliament in enacting s. 718.2(e).

In both Gladue and Ipeelee , the Supreme Court recognized that in order to give effect to s. 718.2(e), the length of imprisonment must be considered and in some cases, the length of incarceration for an Indigenous offender may be less ( Gladue , at para. 79 ). In the

summary at the end of Gladue , the Court directed that: “If there is no alternative to incarceration the length of the term must be carefully considered” (at para. 93; and see Park at para. 24 ). [ 98 ] In this case, the critical factor is to impose a sentence that sends a message of denunciation but at the same time acts to deter and rehabilitate Mr. Harper. In his case, what is critical is that he spends the remainder of his custodial sentence at Headingley jail where he has been actively engaged in serving a restorative sentence.

He is working, has achieved a level of trust and responsibility among inmates and correctional staff, he is receiving regular therapy and is actively involved in improving his mindset and behaviour. His psychologist, Unit Manager and former and future probation officers are all in his corner and ready, willing and able to plan with him to transition to the community. He is considered a suitable candidate for community supervision. [ 99 ] This court is taking advantage of the programming and rehabilitation that is available to Mr. Harper in the provincial corrections system, specifically in jail and on probation.

We may be in a position to sentence Indigenous people to Indigenous-created and run alternatives at some point, but in the absence of such alternatives, the Court is still obligated to do what it can: . . . 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 paras. 74 and 92 ) [ 100 ] A probationary sentence is also designed to have restorative aspects, to address the needs of the victims and the community as well as the offender. This offence occurred in the core area of Winnipeg where drugs, guns, gangs and violent crime are unfortunately frequent.

Many law-abiding citizens in the core area of Winnipeg live in fear of being victimized. Mr. Harper must do what he can to assist not only himself, but the community and the victims in this case, to promote some restoration. [ 101 ] I am imposing a sentence of three years for the housebreak enter and commit assault. A concurrent six months is imposed for the possession of the weapon. The custodial sentence will be followed by three years of supervised probation. The custodial portion of Mr. Harper’s sentence of three years will be reduced by the time he has spent in custody.

He has been in custody since April 27, 2020, a period of 480 days. Crediting his time in custody at a rate of time and a half, amounts to almost two years, or 720 days. Three years expressed in days is 1,095. Subtracting 720 days from that leaves Mr.

Harper with 375 days in custody, or just over one year. [ 102 ] His custodial sentence will be followed by a three year supervised probation order with the following conditions in addition to the statutory requirements: • Report to your probation officer immediately upon your release from jail and thereafter as required by them; • Participate in any assessment counselling and programming as recommended by your probation officer, including substance abuse treatment and programming; • Complete 90 hours of community service work, at least 30 hours in each year, to give back to the community; • Write a letter of apology to Mr.

Saw and Mr. Sheller under the supervision of your probation officer; • Do not contact or communicate with Saw He and Sheller Sheller in any way and do not attend to within 100 metres of their homes. [ 103 ] The following ancillary orders are made: - S. 109 lifetime weapons prohibition on the housebreak and enter; - S. 487.051(1) DNA order on the housebreak and enter which is a primary designated offence. [ 104 ] The victim surcharge is waived, as Mr.

Harper still has considerable time to spend in jail and no employment history that would guarantee an early return to employment income. “Original signed by:” DEVINE, P.J.