R. v. Little, 2019 MBPC 60

CITATION: R. v. Little, 2019 MBPC 60 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Hyman, for the Crown ) - and – ) ) Keegan Little ) ) T. Walker, for the Accused ) ) Reasons for Decision ) Delivered: November 4, 2019 CORRIN, P.J. INTRODUCTION [1] On May 16, 2019, the accused plead guilty to the following charges: - Possession of cocaine for the purpose of trafficking pursuant to section 5(2) of the CDSA; - Possession of a prohibited firearm without a licence pursuant to section 95(1)(

a) of the Criminal Code; - Possession of a prohibited weapon, a handgun, contrary to a prohibition order pursuant to

section 117.01 of the Criminal Code. [2] Following his guilty plea, the sentencing hearing was postponed in order to obtain a standard pre-sentence report. At suchtime, I also informed the parties that I was concerned about the joint submission.

My main concern at such time was the impact such alengthy term of incarceration might have on the youthful 22-year-old offender, who was 21 at the time of the offences. [3] On July 29, 2019, after hearing further sentencing submissions and receiving information that the accused had Indigenousroots, it became necessary to further adjourn the sentencing in order to obtain a supplementary Gladue-style appendix to the pre-sentence report (PSR) ordered on May 16th. Such supplementary report was the subject of a “second” sentencing hearing held on September 24,2019.

CIRCUMSTANCES OF THE OFFENCE [4] Winnipeg Police officers arrested the accused after executing a search warrant at 1369 McDermot Avenue. They also seizedone ounce of cocaine and recovered a loaded sawed-off shotgun with a single cartridge in the over-sized magazine at such time. Mr.Little informed police about the presence of the gun prior to their search. SUBMISSIONS OF COUNSEL [5] Counsel jointly recommended a 30 month sentence for the s. 95 offence, an 18 month consecutive sentence for the drugtrafficking offence and a further 6 month consecutive sentence for the s. 117 offence.

The global sentence was therefore 54 monthsimprisonment. THE LAW [6] Joint submissions are not uncommon in our criminal justice system. They are made under various circumstances and insituations like this one, where the risk of proceeding comes with uncertainty for all parties involved. [7] During the plea inquiry conducted before accepting the guilty plea, the accused was told that I was not obliged to go alongwith a joint submission.

This is consistent with s. 606(1.1) of the Criminal Code, which sets out the rules a judge must follow whenaccepting a guilty plea in order to ensure that the accused is fully informed at the material time. [8] In R. v. Anthony-Cook, 2016 SCC 43 , the Supreme Court of Canada reminded every court in the country of theimportance of joint submissions on sentence.

As Moldaver J. wrote: Joint submissions on sentence - that is, when Crown and defence counsel agree to recommend a particular sentence to the judge, inexchange for the accused entering a plea of guilty - are a subset of resolution discussions. [1] they are both an accepted and acceptablemeans of plea resolution. They occur every day in courtrooms across this country and they are vital to the efficient operation of thecriminal justice system. As this Court said in R. v.

Nixon, 2011 SCC 34 , [2011] 2 S.C.R. 566, not only do joint submissions“help to resolve the vast majority of criminal cases in Canada”, but “in doing so, [they] contribute to a fair and efficient criminal justice

system” (para. 47). [9] The Supreme Court went on to discuss the option of rejecting a joint submission. Moldaver J. outlined the issue at para. 4, thenat paras. 25 and 51 to 60: The narrow issue before us is whether the trial judge erred in departing from the joint submissions proposed by the parties. The broaderissue concerns the legal test trial judges should apply in deciding whether it is appropriate in a particular case to depart from a jointsubmission. It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange fora plea of guilty.

Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, aswell as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges withoutany difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges arenot obliged to go along with them (Criminal Code, R.S.C. 1985, c. C-46, s. 606(1.1)(b)(iii)). In such cases, trial judges need a test againstwhich to measure the acceptability of the joint submission. The question is: What test?

First, trial judges should approach the joint submission on an “as-is” basis. That is to say, the public interest test applies whether thejudge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, aprobation order. If the parties have not asked for a particular order, the judge should assume that it was considered and excluded fromthe joint submission.

However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel.The need for certainty in joint submissions cannot justify failing to impose a mandatory order. Second, trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission(DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case.

On the contrary, from the accused’sperspective, “undercutting” does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations.In addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of thepower imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at thetime of sentencing. These factors may temper the public interest in certainty and justify “undercutting” in limited circumstances.

At thesame time, where the trial judge is considering “undercutting”, he or she should bear in mind that the community’s confidence in theadministration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-uponsentence (see DeSousa, at paras. 23-24). Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading tothe joint submission - and in particular, any benefits obtained by the Crown or concessions made by the accused.

The greater the benefitsobtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the jointsubmission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by theaccused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary tothe public interest.

On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable,the same sentence might cause the public to lose confidence in the criminal justice system. Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the jointsubmission without waiting for a specific request from the trial judge.

As trial judges are obliged to depart only rarely from jointsubmissions, there is a “corollary obligation upon counsel” to ensure that they “amply justify their position on the facts of the case aspresented in open court” (Martin Committee Report, at p. 329). Sentencing - including sentencing based on a joint submission - cannot bedone in the dark.

The Crown and the defence must “provide the trial judge not only with the proposed sentence, but with a fulldescription of the facts relevant to the offender and the offence”, in order to give the judge “a proper basis upon which to determinewhether [the joint submission] should be accepted” (DeSousa, at para. 15; see also Sinclair, at para. 14). This is not to say that counsel must inform the trial judge of “their negotiating positions or the substance of their discussions leading tothe agreement” (R. v. Tkachuk, 2001 ABCA 243 , 293 A.R. 171, at para. 34).

But counsel must be able to inform the trial judgewhy the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. Ifthey do not, they run the risk that the trial judge will reject the joint submission. There may, of course, be cases where it is not possible to put the main considerations underlying a joint submission on the public recordbecause of safety or privacy concerns, or the risk of jeopardizing ongoing criminal investigations (see Martin Committee Report, at p.317).

In such cases, counsel must find alternative means of communicating these considerations to the trial judge in order to ensure thatthe judge is apprised of the relevant considerations and that a proper record is created for appeal purposes. A thorough justification of the joint submission also has an important public perception component. Unless counsel put theconsiderations underlying the joint submission on the record, “though justice may be done, it may not have the appearance of beingdone; the public may suspect, rightly or wrongly, that an impropriety has occurred” (C.C. Ruby, G.J. Chan and N.R.

Hasan, Sentencing (8th ed. 2012), at p. 73). Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, “fundamental fairness dictates that an opportunity beafforded to counsel to make further submissions in an attempt to address the ... judge’s concerns before the sentence is imposed”(G.W.C., at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns,including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case.

Fifth, if the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw hisor her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example,withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, forexample, where a conditional sentence has been proposed but is unavailable.

Finally, trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from thejoint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in theresolution of future cases. Reasons will also facilitate appellate review. [10] The parties presented case law and argument to support their joint submission at the second and third sentencing hearing held onJuly 29, 2019 and September 24, 2019. The case law fully supported the joint recommendation in reference to the circumstances of theoffences.

The sentence proposed is within the specific range. The question is whether it reflects the influence of the offender’s individualcircumstances having regard for his age, immaturity, peculiar vulnerabilities and rehabilitative potential. The youthful offender, althoughpossessing a youth record and one previous adult conviction which resulted in a conditional discharge, has never been previouslyincarcerated.

There is little question, given the information imparted in the post joint recommendation pre-sentence reports, which sameprovided previously unknown information to both counsel and the Court, that the offender suffers from at least a somewhat reducedcapacity for moral judgment. And clearly, because he is still so young, still possesses a presumably high potential for rehabilitation. Onemust be mindful of the observation made by the Manitoba Court of Appeal in R. v.

Leask, at para. 3: The transition from statutorily defined young person to adult should not be marked by an immediate abandonment of rehabilitation as theprimary goal in cases where the prospect of successful rehabilitation is real. [11] The Supreme Court of Canada approvingly quoted this passage in R. v.

Lacasse, 2015 SCC 64 at para. 134. [12] A sentencing court must also always remember the warning provided by LeBel J. at para. 75 of Ipeelee - that it is a“fundamental duty” of sentencing judges to “engage in an individualized assessment of all of the relevant factors and circumstances,including the status and life experiences, of the person standing before them.” [13] It is clearly the individual offender, not a composite borrowed from other cases, who is subject to a court’s adjudicativescrutiny.

A passage in Lacasse, at para. 128, is apropos: If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on thecircumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime. [R. v. R.(M.), 2010QCCA 16 [14] So with this in mind, the Court must determine whether the joint submission is contrary to the public interest or whether itwould bring the administration of justice into disrepute if approved?

In answering this question, I consider what Moldaver J. had to say atparas. 32 to 34 of Anthony-Cook, supra: The Proper Test Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence wouldbring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean? Twodecisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.

In Druken, at para. 29, the court held that a joint submission will bring the administration of justice in disrepute or be contrary to thepublic interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations ofreasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of thecriminal justice system”. And, as stated by the same court in R. v.

B.O.2, 2010 NLCA 19 , at para. 56 , when assessinga joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence inthe institution of the courts”. In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the properfunctioning of the justice system had broken down. This is an undeniably high threshold - and for good reason, as I shall explain. PURPOSES AND PRINCIPLES OF SENTENCING [15]

Section 718 of the Criminal Code lists the purposes of sentencing:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harms done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [16]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degreeof responsibility of the offender. This provision has been often described by the Supreme Court as the lynchpin of individualizedsentencing. [17] As said by the Supreme Court in R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773, at para. 43, “imposing a proportionatesentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm

caused by the crime.” In R. v. Hamilton and Mason, , 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 87, Doherty J.A. saidthat, “the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the uniqueattributes of the specific offender.” Proper application of the principle clearly requires close and balanced attention to the case-specificfeatures of both the offence and the offender. [18] There is here no doubt as to the serious “gravity of the offence”. Cocaine is a hard drug, and its trafficking is despicable.

Theamounts involved, just over one ounce, around 30 grams, are indicative of a mid-level of distribution, and the value of the drugs, ifparceled out in hand-to-hand street sales, speaks to the commercial nature of the enterprise. [19] The second half of the s. 718.1 proportionality equation - the “degree of responsibility of the offender” - raises two separateconcerns. One involves an assessment of the nature and degree of the offender’s participation, or role in the criminal conduct. Thesecond concerns the offender’s moral blameworthiness.

The blameworthiness of Indigenous offenders must be assessed not only byreference to their role in the crime but, as well, by their nexus to the intergenerational trauma attributable to colonialism. As stated by theSupreme Court in R. v. Ipeelee at para. 73, [S]ystemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness.

This is perhaps more evident in Wells, [supra,] where Iacobucci J., [at para. 38,] described these circumstancesas “the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginaloffender’s conduct” ... [T]he reality is that [the] constrained circumstances of [Indigenous offenders] may diminish their moralculpability. [20]

Section 718.2 of the Criminal Code of Canada provides that a court should increase or decrease a sentence to account forrelevant aggravating or mitigating circumstances related to the offence or the offender. [21] In determining what may constitute an appropriate sentence, I must therefore take into consideration any relevant aggravatingand mitigating circumstances relating to the offence and the accused. Aggravating and Mitigating Circumstances [22] There are a number of mitigating factors: • Mr. Little entered a guilty plea.

That is an expression of acceptance of responsibility. • His criminal history is limited. As an adult he only has a mischief under and unauthorized possession of a prohibited or restrictedweapon (bear spray). • He was very young when he committed the offences before the court. [23] There are also, without question, aggravating factors: • The nature of the drug per se. Cocaine is a

Schedule 1 substance as it is highly addictive and can ruin lives. • The possession of the firearm in furtherance of his personal business agenda.

However, the Court does believe the offender’sexplanation that it was only for self-defence in relation to the dangerous nature of his criminal enterprise. [24] As to the second dimension of the analysis: an assessment of the offender’s moral culpability must take into consideration hisage, immaturity, vulnerability, and, by way of rehabilitative potential, the encouraging features of his occupational pursuits since he wasin his late teens. [25] Consideration of the influence of this offender’s individual circumstances on the determination of a fit sentence must begin withhis age, barely 21, at the time of the offence. [26] The superior courts have affirmed the importance of the restraint principle in relation to youthful offenders.

The jurisprudenceclearly requires that a sentencing judge give consideration to the diminished moral blameworthiness or culpability of youthful offenders.The judgment of older adolescents and youthful adult offenders must be treated as mitigating considerations. As stated by the SupremeCourt in R. v.

D.B., 2008 SCC 25 , 2008 2 S.C.R. 3 at para. 41, “because of their age, young people have heightenedvulnerability, less maturity and a reduced capacity for moral judgment.” And, as previously noted herein, the Manitoba Court of Appeal,in Leask said “[T]he transition from statutorily defined young person to adult should not be marked by an immediate abandonment ofrehabilitation as the primary goal in cases where the prospect of successful rehabilitation is real.” OFFENDER’S PERSONAL CIRCUMSTANCES [27] Mr. Little’s personal circumstances are set out in the main and supplemental PSR’s.

The accused’s biological parents werenever actively involved in his care. As a consequence, an aunt, Ms. Shaun McGee, and her husband, cared for the subject from infancy tohis early teens. Ms. McGee intervened in a Child and Family Services permanent guardianship application in 1999, when Mr. Little wasa toddler, and was awarded guardianship in 2001. Mr. Little was referred to the Child Development Centre because his developmentalmilestones were notably delayed. He was diagnosed with ADHD and a number of other issues at such time.

Probation files reveal thatthe subject has also been diagnosed with post-traumatic stress disorder, attachment disorder and anxiety disorder. He has also beenprescribed a variety of medications including anti-psychotic drugs. At nine and eleven he was hospitalized for several weeks at thepsychiatric department at the Health Sciences Centre after suicide attempts. [28] At 12 he was the victim of a brutal physical assault which resulted in a fractured skull and internal brain hemorrhage. He spenttwo weeks in intensive care at Children’s Hospital following the incident.

The incident, involving four assailants, two from a local highschool, at a skate park in Fort Garry, had racial undertones. The accused, because he was called a “dirty Indian”, believes he was

victimized because of his Indigenous appearance. [29] Later, also when he was twelve, he spent three months as an in-patient at the Manitoba Adolescent Treatment Centre. Theaccused advised Court that he was regularly seeing psychiatrists and psychologists from age 5 to 16, that such treatment wasdiscontinued when he was approximately 16 years old, just prior to his being placed in an independent living program by CFS. Courtlearned that Mr.

Little had become violent in the McGee home when he was 13 and had subsequently been placed in a number ofspecialized foster homes as CFS felt that he needed twenty-four hour care. The accused was put into an independent living arrangementwhen he was around 16. School attendance was a major problem for the accused because of alcohol abuse, which began when he was 10or 11, and became unmanageable in his teens.

According to the accused he curtailed heavy binge drinking when was 19 years of age.The accused expressed resentment towards CFS for putting him in situations where he was put into living arrangements “with kids thatwere actively involved in crime.” He feels that such negative influences led him astray as his peers encouraged him to give up his formerpro-social lifestyle. [30] To his credit the offender possesses a commendable work history which began when he was 15 years of age.

He related in courtthat his drug business was a financial coping strategy of sorts after he lost a construction-related job situation that he had held full-timefor almost two full years. Court was left with the impression that this position ended when he was around 20, a year or so prior to hisarrest. [31] As conceded by the Crown, the offender’s role in the CDSA offence was no higher than mid-level. He was neither a big playernor a low-level street dealer.

The amount of cocaine seized suggests the lower end of the mid-level. [32] There is little evidence that the accused had any prior association with a criminal gang or its members. I appreciate that anoffender is not entitled to be sentenced on the most favourable set of facts imaginable (R. v. Holt (1993), 4 C.C.C. (3d) 42 (Ont. C.A.)and R. v. Smickle (2013), 2013 ONCA 678 , 304 C.C.C. (3d) 371.), but nonetheless, I think it a reasonable inference, and oneconsistent with his extreme youth that Mr.

Little’s participation was a product of his manipulation by others, persons older and certainlymore criminally sophisticated than him. There is no information before the court suggestive of his being long-term involved in drugdealing. He appears to have been a very small cog in a much larger wheel. SENTENCE CASELAW [33] The Court found a number of cases where no exceptional circumstances were found but the sentences were nevertheless at thebottom of or below the usual prescribed sentencing range.

These cases reflect a sentencing judge’s capacity to exercise his or herdiscretion and depart the usual sentencing range based on the circumstances of the offence and offender. As mentioned by the SupremeCourt of Canada in R. v. Lacasse, 2015 SCC 64, commenting on sentencing ranges: Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principlesand objectives of sentencing.

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed inthe past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they shouldnot be considered ‘averages’, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges,who must still exercise their discretion in each case (paragraph 57). [34] It is also important to remember the dicta of Mr. Justice Mainella at paras. 25 and 26 of R. v. Burnett, 2017 MBCA 122.

At 25he states that “The law does not require a sentencing judge to find ‘exceptional circumstances’ to justify imposing a sentence that merelydeparts downward from a judicially created starting point or sentencing range.” And at 26 he further states that to require that“exceptional circumstances be found in order for a sentence to be one that is below an established starting point or sentencing range,would be an artificial fettering of a sentencing judge’s discretion. That only Parliament can do that through the imposition of mandatoryminimum sentences.” [35] In R. v.

Sass, 2018 MBCA 46, the offender pleaded guilty to possession for the purpose of trafficking. He was 25 years old witha minor related criminal record. He was remorseful, had a challenging upbringing, and was a drug and alcohol addict. He did not takecounselling or treatment before sentencing. He had obtained employment and had stopped using cocaine. He was assessed as a high riskto reoffend. The Court of Appeal concluded these circumstances were not exceptional but a 15 month sentence of imprisonment wasnevertheless deemed appropriate. [36] In R. v.

Zammit, 2018 MBCA 46, the offender pleaded guilty to trafficking in cocaine. He was 20 years old, had no priorcriminal record, and was remorseful. He had some employment. He had no drug or alcohol problems. He sold cocaine to fit in with acertain crowd. He did not take any counselling prior to sentencing. He was assessed as a medium risk to reoffend. The Court of Appealfound there were not exceptional circumstances. The accused had not turned his life around or demonstrated rehabilitation since hisarrest. The Court of Appeal nevertheless found a fit sentence to be 12 months imprisonment. [37] In R. v.

Kurdydyk, 2017 MBQB 2, an offender was convicted after trial of possession for the purpose of trafficking ecstacy andmeth. The offender was 19 on arrest. He had a university education. He had held employment. He had some mental health issues. He hada long and varied history of using drugs. He sold drugs to support his own habit. It seemed he had stopped using substances. He hadobtained some professional help. His rehabilitation was not complete. The judge found there were not exceptional circumstances and anon-custodial sentence could not be justified as it could not be said he had truly turned his life around.

The judge found that themitigating factors warranted a sentence at the lower end of the range and found a period of 12 months incarceration was a fit and fairsentence, followed by two years of probation. [38] In the case of R. v. Romanishen, 2017 MBQB 85, an offender was convicted after trial for possession for the purpose oftrafficking crack cocaine. She was found with 84 wrapped one quarter grams of crack cocaine. She was 8 months pregnant at the time ofsentencing. She had been working steadily. She had been a drug addict and sold drugs to make money. Since her arrest she had beentaking post secondary courses.

She had not done any formal drug programming but advised she no longer used street drugs. She hadfamily support. And she had insight into her prior addiction. She had no prior record. Circumstances were found not to be exceptional butthe court imposed a sentence of 12 months incarceration followed by probation.

GLADUE FACTORS [39] The accused reported that he was “cut off from the opportunity to embrace” his Indigenous heritage because of lack of contactwith his mother and his mother’s side of the family. The PSR reports that his biological father “failed to discuss his mother’s heritage.”His paternal aunt and guardian, Ms. McGee (referred to in para. 27), told him that his mother was of Indigenous background.

However,she was unable to relate any details, such as the community she lived in or her ancestral language and affiliations. [40] The PSR preparer, probation officer Jacqueline Dean, was unable to access Child and Family Services historical recordspertaining to the subject’s mother in order to compile information for her supplemental Gladue report. The problem was due to theFreedom of Information and Protection of Privacy Act (FIPPA) and the Personal Health Information Act (PHIA) regulations.

Bothstatutes contain restrictions respecting the release of such personal information without consent of the privacy protected person.Apparently Mr. Little’s mother has not given such consent. [41] Mr. Little expressed feelings of abandonment in relation to his mother as well as feelings of inferiority and social ostracism inrelation to his Indigenous background. He told Ms. Dean that he felt that he “was never really accepted” by many non-Indigenous peoplehe encountered.

The accused’s dislocation and loss of identity certainly seems to relate to systemic disadvantage and socialimpoverishment on his maternal side. The PSR information reveals a likelihood that intergenerational systemic factors stemming fromcolonial policies may have negatively affected the accused’s childhood development. [42] The jurisprudence makes it clear that no direct causal link between an offence and an offender’s Indigenous heritage is required.In R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433, the Supreme Court held that it was an error to require an Aboriginaloffender to establish a causal link between his or her background factors and the commission of the offence(

s) in question before he orshe is entitled to have those factors considered by the sentencing judge. The court suggested, at para. 82, that requiring a causalconnection demonstrated “an inadequate understanding of the devastating intergenerational effects of the collective experiences ofAboriginal peoples”, and also imposed an evidentiary burden on the offender that was not intended by Gladue. [43] The Court agrees with Ms.

Dean’s conclusion, expressed in her supplementary Gladue PSR, that “dissociation from culture (sic)identity can contribute to the breakdown of a person’s health and social well-being.” The Court observes that such a factor can impactboth physical and mental health. [44] As such, although his Indigenous heritage may not have directly been the context underlying his offences, it nevertheless mayreasonably have been a factor which related to his moral blameworthiness in the context of s. 718.2(

e) of the Criminal Code. SENTENCE [45] This Court is satisfied that Mr. Little has now come to fully understand the very serious concerns that arise from hisinvolvement in these offences. It believes that his promise not to ever reoffend in such respect is made sincerely and on a bona fide basis.This suggests that specific deterrence is no longer a major consideration bearing on sentence. I am therefore, given his youth, hisvulnerability and his Gladue and s. 718.2(

e) factors (which apply to all offenders), of the view that the jointly proposed sentence shouldnot be confirmed, that something less will be adequate and purposeful in the offender’s unique and most unfortunate circumstances. TheCourt is also of the opinion that the length of the proposed sentence over-emphasizes the need for general deterrence in Mr.

Little’s caseas he is still a very youthful offender. [46] The period of incarceration that I have chosen to impose will help facilitate the rehabilitation of the offender as it will permit meto place him on three years supervised probation, something that the Court believes will help the young offender get the help he mayneed to maintain a pro-social equilibrium when he returns to the community. The Court observes that Mr. Little has not really had thebenefit of such sustained guidance for some time.

Rehabilitation, like deterrence, has a significant purpose: the repudiation of criminalactivity and transition to a pro-social lifestyle offers the best assurance of continuing societal protection. As explained in R. v. Lacasse, atpara. 4: One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate. [47] The Court also notes it’s concern that a less restrained approach to sentence, albeit as jointly recommended by counsel, maynot be in the public interest as it may discourage Mr. Little to the extent that he may feel so discouraged that he will be less inclined tomake a necessary serious attempt to contend with his underlying personal issues and problems. Applying the s. 718.2(

c) totality principleas described by the Manitoba Court of Appeal in R. v. Reader, 2008 MBCA 42 at para. 26, which states: This approach calls upon the judge, when sentencing an accused for more than one offence, to determine the appropriate sentence foreach offence, taking into account in weighing all relevant factors in deciding, in accordance with the principles governing consecutivesentences, whether the sentence should be consecutive or not.

If all or some of the offenses are to be served consecutively, the judgemust then consider the cumulative effect of the total sentence and take one last look to see whether it exceeds the overall culpability ofthe offender.

I therefore impose the following adjusted sentences for the accused’s offences: • For the possession of a prohibited firearm (Criminal Code s. 95(1)(a)), 30 months. • For the possession for the purpose of trafficking (CDSA S. 5(2)), 14 months consecutive. • For the possession of a prohibited weapon contrary to a prohibition order (Criminal Code s. 117.01), 4 months consecutive. [48] The total sentence is therefore 48 months.

[ 49 ] The Court has been advised that the accused has accumulated 568 days time in custody. The parties agree that such time should be credited at an enhanced rate of 1.5:1. Mr. Little will therefore be given credit for 852 days or 28.40 months, leaving a going forward or remaining sentence of 19.6 months to serve. [ 50 ] The Court also imposes a three year order of supervised probation to be served following the offender’s release from incarceration. The terms of some are to be as follows: 1. He is to keep the peace and be of good behaviour; 2.

He is to report to probation within 48 hours after his release and thereafter as directed from time to time; 3. He is to report any change of residential address or name prior to implementing any such change; 4. He is to attend, participate in and satisfactorily complete any assessments, treatment programming or counselling as directed; 5. He is to sign any privacy release that his supervisor requires to access information respecting compliance with any condition in this order; 6.

He is also to participate in any educational upgrading and/or employment training programs as directed to do so. [ 51 ] The Court also orders that the offender provide a sample of his DNA pursuant to sections 487.04 and 487.051(1) of the Criminal Code and also orders a lifetime weapons prohibition pursuant to

section 109 of the Criminal Code . “Original signed by:” CORRIN, P.J.