R. v. Cardinal, 2015 BCSC 2536

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cardinal, 2015 BCSC 2536 Date: 20150707 Docket: 30901-2 Registry: Dawson Creek Regina v. Quinn Lawrence William Cardinal Before: The Honourable Mr. Justice G.P. Weatherill Oral Reasons for Sentence Counsel for the Crown: T.A. Golinsky Counsel for the Accused: J.M. Duncan Place and Dates of Hearing: Dawson Creek, B.C. April 14, 2014 Place and Date of Sentence: Dawson Creek, B.C.

July 7, 2015 [ 1 ] THE COURT: Quinn Lawrence William Cardinal is before me for sentencing, having pled guilty on April 14, 2014 to Counts 1 through 4, inclusive, of a 12-count Indictment arising out of a single motor vehicle accident that occurred on June 5, 2010 near Arras, B.C. The accident resulted in the deaths of Mr.

Cardinal's friends, Joshua Lavallee and Michael Bateman, and injury to two of his other friends, Chevy Brown, and Ryan Gladue. [ 2 ] Counts 1 through 4 of the Indictment read: Count 1 Quinn Lawrence William Cardinal, on or about the 5th day of June, 2010, at or near Arras, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle, and thereby did cause the death of Joshua Lavallee, contrary to Section 255(3) of the Criminal Code .

Count 2 Quinn Lawrence William Cardinal, on or about the 5th day of June, 2010, at or near Arras, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle, and thereby did cause the death of Michael Bateman, contrary to Section 255(3) of the Criminal Code .

Count 3 Quinn Lawrence William Cardinal, on or about the 5th day of June, 2010, at or near Arras, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle, and thereby did cause bodily harm to Chevy Brown, contrary to Section 255(2) of the Criminal Code .

Count 4 Quinn Lawrence William Cardinal, on or about the 5th day of June, 2010, at or near Arras, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle, and thereby did cause bodily harm to Ryan Gladue, contrary to Section 255(2) of the Criminal Code . Circumstances of the Offences [ 3 ] Mr. Cardinal, his cousin, Ryan Gladue, and three of his friends, Chevy Brown, Joshua Lavallee and Michael Bateman, were drinking together during the evening of June 4, 2010, in Chetwynd, B.C., where they all resided.

The drinking continued into the early

morning hours of June 5, 2010. They went to house parties and bars. They were all intoxicated. I infer from the material before me that illicit drugs were also consumed. [ 4 ] For reasons that are unclear, at approximately 3:00 a.m., the group decided to leave Chetwynd and drive to Dawson Creek, using Mr. Gladue's truck. Mr. Cardinal elected to drive because he felt he was the most sober of the group. On their way to Dawson Creek on Highway 97 and while attempting to negotiate a sweeping left hand turn, Mr. Cardinal lost control of the truck and it left the roadway, rolling several times. Mr. Lavallee and Mr.

Bateman were ejected from the truck and died at the scene. The others, including Mr. Cardinal, were injured. [ 5 ] Accident reconstruction engineering evidence suggests the truck speed prior to Mr. Cardinal losing control was in the range of 134 to 161 kilometres per hour. Its speed at the time Mr. Cardinal lost control was 128 kilometres per hour. The speed limit on the highway in that location is 100 kilometres per hour. [ 6 ] A sample of Mr. Cardinal's blood was taken at the Dawson Creek Hospital and sent for analysis.

The experts who extrapolated his blood alcohol content to the time of the accident opined that it would have been in the order of 178 to 238 milligrams percent, an amount twice to three times the legal limit of .08 milligrams percent, assuming Mr. Cardinal did not consume alcohol after the accident before the police arrived. His blood analysis also disclosed ecstasy and other drugs in his system. [ 7 ] From the agreed statement of facts filed as Exhibit 1 on the sentencing, and by Mr.

Cardinal's admission of guilt to Counts 1 through 4 of the Indictment, there is no doubt that he was impaired by alcohol and drugs at the relevant time. Mr. Cardinal's Background [ 8 ] Mr. Cardinal is a 24-year-old non-status Aboriginal person born in Chetwynd, B.C. to Aboriginal parents on March 30, 1991. Much effort has been made to inform the Court about his background and the role his Aboriginal heritage played in his life and ultimately the tragic events of June 5, 2010. This includes: (

a) A Gladue report authored by Mitchell Walker, Gladue report writer, and the Director of Justice for Tsay Keh Dene First Nation, filed June 13, 2014 ("the Gladue report"); (

b) A presentence report filed August 19, 2014, and a presentence report addendum, both authored by probation officer Hutchinson, filed September 22, 2014 ("the presentence reports"); (

c) A psychiatric presentence report authored by Dr. David Morgan, consulting psychiatrist with the Prince George Forensic Psychiatric Services Commission, dated December 1, 2014; (

d) Psychological reports authored by Dr. Evan Lopes, B.C. Mental Health and Substance Use Services, dated February 12, 2015 and April 23, 2015. [ 9 ] It is clear from these reports and by counsel's submissions that Mr. Cardinal had a difficult upbringing. They disclose that his father was abusive and that his mother abandoned her husband and seven children when Mr. Cardinal was six years of age to be with a man she met on the internet. From that point on, Mr. Cardinal and his siblings were left to fend for and raise themselves.

He lacked any form of parental support and what little supervision he got was from his older siblings. There was no one to tell him right from wrong, ensure that he went to school, or eat properly. There was no discipline, supervision, curfew, or rules. He came and went as he pleased. He sensed that he was a forgotten child and that no one cared for him. [ 10 ] The reports disclose that both of Mr.

Cardinal's parents came from two different Aboriginal communities, both of which suffered from the intergenerational impact of colonization, residential schools, and the attempted assimilation of First Nations. [ 11 ] After his mother left the family, his father went from bad to worse. He began trafficking drugs out of his home and, as a consequence, Mr. Cardinal was exposed to the lower fringes of society at a young age. Drug addicts and drug users frequented his home. His father was eventually arrested and convicted for drug trafficking and served two years. Mr.

Cardinal's older sisters continued to do their best to look after him. [ 12 ] Mr. Cardinal struggled with school. His school records disclose chronic absenteeism and failing grades. His teachers correlated his school struggles with family issues. There is a suggestion that some of his difficulties could have been due to an undiagnosed learning disability caused by Fetal Alcohol Syndrome, but that has never been confirmed. [ 13 ] He started drinking at age nine and soon after started experimenting with marihuana.

He started binge drinking hard alcohol at age 14 and later became a frequent user of marihuana, ecstasy and other drugs. He experimented in cocaine from time to time. The Gladue report summarizes it this way at p. 3: He recalled a childhood rife with instability, exposure to violence, substance abuse, and the lack of both love and supervision.

Moreover, he described a life that has been impacted by the abject realities of poverty and generational impacts of colonization and Indian residential schools. [ 14 ] And at p. 14: He was exposed to substance abuse and violence between his parents; physical abuse at the hands of his parents; abandonment by his mother; poverty and the sale of illegal substances. He experienced a lack of love, support, and supervision from his parents. These factors are directly tied to both the experiences of his ancestors and the offence that has brought him to court.

Impact on the Victims and their Families [15] I have had the benefit of reading victim impact statements read by Mr. Bateman's parents, John Bateman and ChristineBateman, his brother, John Bateman, Jr., his sister, Robin, as well as a victim impact statement of Ms. Lavallee, Mr. Lavallee'sgrandmother, Fay Lavallee. Fay Lavallee updated her report and also read it in open court today. [16] To say that these statements are heart-wrenching is a gross understatement.

Words cannot begin to describe the loss these twofamilies have suffered as a result of such a careless, drunken decision and needless loss of life. [17] The Bateman and Lavallee families quite rightly continue to be angry and devastated by their tragic losses which will doubtlesscontinue for their lifetime. Remorse [18] Mr. Cardinal has accepted responsibility for the events of June 5, 2010 and the loss of life he caused. He continues to refer toMr. Bateman and Mr. Lavallee as his best friends.

It has had a profound impact on his mental health. [19] During the Gladue interview, he was emotional throughout the questioning about the accident stating, "I'm so sad abouteverything. I am so sorry for what happened to my friends.” He indicated that he remains upset that he has never had the chance toapologize to their families and friends. He wants to, but did not know how until today. [20] He too, read a statement to the Bateman and Lavallee families in open court. Chetwynd is a small community. Immediatelyfollowing the accident, he was in effect ostracized. He received death threats.

People were disparaging of him on social media. As aresult, he became isolated and now rarely goes out so he does not have to see people. He has also become depressed. He understands heneeds help dealing with his feelings but does not have the resources or skills to initiate counselling. [21] On the information I have available, I am satisfied that Mr. Cardinal is extremely remorseful for causing the death of his twogood friends, and causing injury to two others. It was the result of stupidity and disregard for the risks of driving while impaired thatcaused this tragedy. It was not deliberate.

I accept that the events of June 5, 2010, were the result of significant alcohol and drug intake,fuelled by a lifetime of alcohol and drug abuse. His feeling of remorse is heartfelt. Sentencing of Aboriginal Offenders – the Governing Principles [22] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court set out the unique process that must befollowed in sentencing Aboriginal offenders.

I quote from paragraphs 75, 80 to 81, and 88: [75] The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking intoaccount all the circumstances of the offence, the offender, the victims, and the community. Nothing in

Part XXIII of the Criminal Codealters this fundamental duty as a general matter. However, the effect of s. 718.2(e), viewed in the context of

Part XXIII as a whole, is toalter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

Section 718.2(e)requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. ... [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis:For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offenderand his or her community?

What combination of systemic or background factors contributed to this particular offender coming before thecourts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in thecommunity, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denouncecrime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved throughhealing?

What sentencing options present themselves in these circumstances? [81] The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence inthe circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required totake into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person.

Sentencing must proceed with sensitivity to and understanding of thedifficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstancesin light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge muststrive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have beenprovided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration whichare appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. Inthis way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. ... [88] But s. 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period ofincarceration, simply because the offender is aboriginal. To the extent that the appellant's submission on affirmative action means thats. 718.2(

e) requires an automatic reduction in sentence for an aboriginal offender, we reject that view. The provision is a direction to

sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as a part of the task of weighing the multitude of factors which must be taken into account in striving to impose a fit sentence. It cannot be forgotten that s. 718.2(

e) must be considered in the context of that

section read as a whole and in the context of s. 718, s. 718.1, and the overall scheme of

Part XXIII. It is one of the statutorily mandated considerations that a sentencing judge must take into account. It may not always mean a lower sentence for an aboriginal offender. The sentence imposed will depend upon all the factors which must be taken into account in each individual case. The weight to be given to these various factors will vary in each case. At the same time, 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.

The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence. [ 23 ] Gladue also recognized the significance of community in sentencing Aboriginal offenders. At paragraphs 77 to 79, the Court stated: [77] … As explained herein, the circumstances of aboriginal offenders are markedly different from those of other offenders, being characterized by unique systemic and background factors.

Further, an aboriginal offender's community will frequently understand the nature of a just sanction in a manner significantly different from that of many non-aboriginal communities. In appropriate cases, some of the traditional sentencing objectives will be correspondingly less relevant in determining a sentence that is reasonable in the circumstances, and the goals of restorative justice will quite properly be given greater weight. … [78] In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [ 24 ] Taking the life of another person is one of the most serious offences known to our law. When a life has been unlawfully taken there is a wide range of possible sentences, ranging from suspended sentences to life imprisonment. [ 25 ] In sentencing Mr.

Cardinal, I must consider and apply the principles and purposes of sentencing set out in ss. 718 , 718.1 and 718.2 of the Code . The sentence must be arrived at by balancing the important considerations of general deterrence and denunciation with the goals of rehabilitating offenders and achieving reconciliation with specific regard to the influence of the offender's Aboriginal background on his moral culpability and in committing this offence. Ultimately, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see R. v.

Jack , 2008 BCCA 437 ). [ 26 ] Sentencing, as both counsel agree, is an individualized process. The relative emphasis to be given to the various objectives will vary according to the particular offence and the particular offender. In this case, the paramount objective to consider is the protection of the public as well as deterrence, denunciation and Mr.

Cardinal's rehabilitation. [ 27 ] As set out in s. 718.2(e), all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 28 ] Insofar as Mr. Cardinal's Aboriginal heritage is concerned, in sentencing him I am cognizant of the need to consider: 1. The unique systemic and background factors as they relate to Aboriginal offenders which may have played a

part in bringing Mr. Cardinal before the Court; and 2. The types of sentencing procedures and sanctions which may be appropriate in Mr. Cardinal's circumstances because of his Aboriginal heritage or connection. [ 29 ] Both sets of circumstances bear on the ultimate question of what is the fit and proper sentence ( R. v. Ipeelee , 2012 SCC 13 ). They inform and guide my assessment in determining the appropriate sentence to be imposed. [ 30 ] In R. v. Shanoss , 2013 BCSC 2335 Bruce J., reviewed the interplay between the Gladue principles and s. 718.2(

e) of the Code and the need for the Court to apply those principles in the context of sentencing. Quoting from paragraphs 161 and 162: [161]

Section 718.2 (

e) of the Code requires judges to pay special attention to the circumstances of Aboriginal offenders in the sentencing process because their background may have played a role in bringing them into contact with the justice system and because different types of sanctions may be more effective in both punishing the Aboriginal offender and rehabilitating them: R. v. Ipeelee , 2012 SCC 13 at para. 59 . The Supreme Court of Canada summarizes the duty imposed on a sentencing judge in Ipeelee at para. 75 : [75]

Section 718.2(

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

Gladue is entirely consistent with the requirement that sentencing judges 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. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.

Section 718.2(

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.

[162] It is apparent from the reasoning in Ipeelee that regardless of how violent and serious the offences committed by the accused, theprovisions of s. 718.2(

e) apply…. Crown's Position [31] Crown argues that the circumstances of this case call for a period of incarceration of 30 to 36 months on Counts 1 and 2, and 18to 24 months on Counts 3 to 4, all to be served concurrently to one another. Crown also seeks a three-year driving prohibition pursuant tos. 259(2) of the Code. [32] Crown points out that the programs available to Mr.

Cardinal in the Federal Corrections system will assist him in engaging withAboriginal practices and will offer him the opportunity of getting trained in a worthwhile vocation that will help focus him towards afuture of contributing to society in a positive way. [33] The Crown relies on a series of cases including R. v. Matheson, 2011 BCSC 308; R. v. Wengenmayr, 2013 BCSC 641; R. v.Livingston, 2013 BCSC 1837; R. v. Healey, 2014 BCSC 1645; R. v. Casimir, 2001 BCCA 310; R. v. Homer, 2003 BCCA 15; R. v.Woloshyn, 2006 BCCA 228; R. v. Charles, 2011 BCCA 68; R. v. Smith, 2013 BCCA 173; and R. v. Berner, 2013 BCCA 188.

Mr. Cardinal's Position [34] On behalf of Mr. Cardinal, Mr. Duncan urges the Court to suspend the passing of Mr. Cardinal's sentence and include a periodof probation for three years. He argues that while in ordinary circumstances the sentence suggested by the Crown might be appropriate,the circumstances that exist here are exceptional and the Court has discretion to issue a suspended sentence with probation that wouldallow Mr. Cardinal to remain in the community and seek the resources that are suggested by the Gladue report and presentence reports tobe available to him. He relies on R. v.

Smith, 2013 BCCA 173, as authority. [35] He argues that Mr. Cardinal is suffering cognitive difficulties that have not properly been addressed. He has an Aboriginalbackground and has had clear problems with his upbringing. He draws a parallel in sentencing principles between this case and threecases that involve convictions for aggravated assaults: R. v. Samuelson, 2015 BCCA 29 [Samuelson]; R. v. Carlson, 2015 BCSC 1032;and R. v.

Nicholls, 2013 BCSC 1145. [36] In Samuelson, the offender sought to appeal a jail sentence of two years less a day and three years' probation for aggravatedassault on the basis that the sentencing judge failed to properly consider the alternative of a suspended sentence. At paragraph 25,Madam Justice Kirkpatrick for the Court of Appeal stated: [25] At the outset, it is important to emphasize that sentencing is an individualized process, as the Supreme Court of Canada recentlyexplained in R. v. Pham, 2013 SCC 15 at para. 8.

The potential of a person to rehabilitate is an important factor to consider in craftingsuch an individualized sentence. Assessing the potential of a particular offender to rehabilitate is a fact that is within the purview of thesentencing judge: R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500 at para. 82.

Even if the manner and the type of the offenceis similar, and even where some background circumstances of the offender (e.g., age or criminal record) are partly analogous, theunderlying potential of the offender to be rehabilitated may indicate the need for a more (or less) severe sentence. [37] In the end, the appeal was dismissed. The Court of Appeal held that the sentencing judge had crafted a sentence that wouldpermit Mr. Samuelson to be placed on probation for three years in recognition of his fundamental need for supervision and treatment andupheld the sentence of two years less a day. [38] Mr.

Duncan also cautioned me to consider that many of the cases the Crown relies upon were pre-Ipeelee and the Gladuefactors must be considered in cases of this nature. I agree with his submissions in that regard. [39] In sum, he submits that a non-custodial sentence is available in circumstances such as this. Aggravating Factors [40] The Crown and Mr. Duncan are mostly in agreement regarding aggravating and mitigating factors. These are as follows: 1.

The number of lives lost or injured [41] I am reading from Crown's written submissions at paragraphs 23 through 34. [42] The personal devastation caused by this collision is immense. In addition to Mr. Cardinal's own family, there are four familieswhose lives have been forever changed. Two young men were seriously injured. Two families lost their young sons as a direct result ofMr. Cardinal's actions that night. These two families suffer the loss of their sons daily and will do so for the rest of their lives. 2. Level of intoxication [43] Mr.

Cardinal's blood alcohol concentration as calculated by the Crown's experts was between 178 and 238 milligrams of alcoholin 100 millilitres of blood at the time of the collision assuming he had not consumed any alcohol post-accident. Additionally, the Crown'sexperts who assessed and reviewed Mr. Cardinal's blood sample taken six hours after the collision described the concentration of ecstasyto be high and potentially toxic in concentration.

Section 255.1 of the Criminal Code [Code] dictates that a blood alcohol reading over

160 milligrams of alcohol in 100 millilitres of blood is deemed to be an aggravating factor. 3. Speeding [ 44 ] The Crown's experts have determined that the vehicle that Mr. Cardinal was driving prior to the rollover was travelling at between 134 and 161 kilometres per hour and at the time he entered the curve. As the truck started to roll over, its speed was in the order of 128 kilometres per hour. The posted speed limit in that area is 100 kilometres an hour. 4. Driving Record [ 45 ] Although Mr.

Cardinal has no criminal convictions, he does have a short driving record that shows that on October 3, 2009, some eight months prior to this accident, he was given a 24-hour driving prohibition due to alcohol. At the time of the June 5, 2010, accident he was also driving with a Class "N" licence which restricts him to having one passenger and no alcohol in his blood. Mitigating Factors [ 46 ] Mitigating factors are: 1. Mr. Cardinal does not have a criminal record. 2. Mr.

Cardinal has pled guilty to the offences in Counts 1 through 4 and has been forthcoming about his personal life to the authors of the Gladue and the presentence reports. Expression of Remorse [ 47 ] As mentioned earlier, Mr. Cardinal's expression of remorse to the families today in Court was heartfelt, and according to the Gladue and presentence reports, he continues to have a high degree of emotionality associated with guilt and remorse. Gladue Principles [ 48 ] I have already addressed and considered the Gladue principles set out in the Gladue report. [ 49 ] Since this unfortunate event, Mr.

Cardinal has apparently made serious efforts to address his alcoholism and according to the presentence report has abstained from alcohol consumption save for the odd occasion. He does not appear, however, to have yet taken any steps towards obtaining counselling or other forms of rehabilitation.

The material before me suggests that this is partly because any spare money he has had has been consumed by legal expenses, partly because it has been difficult for him to go out in the community, and partly for reasons that could be related to his mental health that he is unable to initiate rehabilitation. [ 50 ] In sum, Mr. Cardinal appears to be floundering and has been for the past five years. In his present environment he has been unable to make any strides in upgrading his work skills or moving forward with his life. In other words, he appears to be stalled.

Decision [ 51 ] The sentence I impose must be a balance between the need for denunciation and deterrence on the one hand, and the role played by Mr. Cardinal's Aboriginal background and his particular circumstances on the other. Germane to the analysis is his poor judgment and blameworthiness for what happened on June 5, 2010. [ 52 ] I will not review the Gladue report and presentence reports in detail, save to say that they have provided helpful insight into who Mr. Cardinal was and who Mr. Cardinal currently is.

The recommendations made in those reports are also helpful in the analysis. [ 53 ] Notwithstanding the seriousness of these offences, I am satisfied that Mr. Cardinal's upbringing, dysfunctional family life and substance abuse issues taken together and put in context explain at least to some degree how this tragedy happened. This is important because although the sentence I impose on Mr.

Cardinal must be proportionate to the gravity of the offences he pled guilty to, it must also be proportionate to the degree of his responsibility which is impacted by systemic and background factors. [ 54 ] The Gladue principles direct sentencing judges to abandon the presumption that all offenders in all communities share the same values, recognizing that different sanctions may be more effective to meet objectives of sentencing in particular circumstances and be meaningful to the community of which the offender is a member ( Ipeelee at paras. 73 and 74 ). [ 55 ] This tragedy has resulted in enormous loss to the Lavallee and Bateman families.

The sentence I impose must reflect the need to deter others from what I consider to be rampant and inexcusable driving behaviour. [ 56 ] I conclude that the mitigating factors in Mr. Cardinal's life are offset by the aggravating factors. Mr. Cardinal's Aboriginal heritage played a major role in his life with alcohol and drugs that ultimately resulted in the untimely death of his two friends. [ 57 ] I agree with Crown counsel's submission that all things considered, including the Gladue factors, a period of incarceration is

required. I am, however, satisfied that the principles of sentencing in this case will be best served with Mr. Cardinal serving a jail sentence in the Provincial Corrections system rather than the Federal Corrections system. [ 58 ] According to the Gladue report, he will be able to access cognitive behavioural therapy programs and take courses that deal with relationship violence, substance abuse and anger management. He will also have access to one-to-one counselling and educational upgrading. [ 59 ] Not only do all the reports recommend these programs should be made available to Mr. Cardinal, Mr.

Cardinal himself agreed that these are the types of positive rehabilitation programs he would like to participate in to move his life forward and become a productive member of society. [ 60 ] Mr. Cardinal, will you please stand. [ 61 ] I am satisfied, Mr. Cardinal, that a fit and proper sentence in this case is for you to serve two years less a day on Counts 1 and 2, and 18 months on Counts 3 and 4, all to be served concurrently. That is the sentence that I impose on you. [ 62 ] This sentence will be followed by a period of probation for three years during which time you will: (

a) Keep the peace and be of good behaviour; (

b) Appear before the Court as and when directed; (

c) Report to the probation office -- -- where is the probation office Crown? [ 63 ] MS. GOLINSKY: What I would suggest My Lord is the location nearest to your release. I think there is some wording in a binder – does the Court have the conditions? [ 64 ] MR. DUNCAN: Yes, my friend is right. He will probably serve it in Prince George so the release – the first report probably should take place nearest that, but there is some language there that speaks to it. [ 65 ] THE COURT: This one says located at the street address to be filled in by the local registry. [ 66 ] MS.

GOLINSKY: There may be something else in the way of upon your release from prison – there is something – [ 67 ] THE COURT: I will say it: (c) ... on your release from prison, you shall report to the nearest probation office to your release location and thereafter as directed; (

d) You will provide your residential address to your probation officer and not change that address without the prior written permission from your probation officer; (

e) You are to attend sessions as directed by a registered psychologist to address the possible issues of trauma that you might be experiencing as a result of the events of June 5, 2010; (

f) You will abstain absolutely from the possession and consumption of alcohol and any non-prescription drugs or substances listed in ss. 1 to 4 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, save and except as prescribed by a medical doctor and then only according to the dosage prescribed; (

g) You are to submit to random urine analysis or serum analysis or other forms of monitoring to ensure adherence to the abstention condition; (

h) You are prohibited for a period of three years from operating a motor vehicle on a highway; (

i) You must not enter any retail establishment which sells liquor as its primary commodity including liquor stores, bars, pubs, private liquor stores and beer and wine stores but you will be permitted to enter restaurants and places that do not sell liquor as their primary commodities; (

j) You will not be in possession of any weapons as described by the Criminal Code including knives, save and except for the immediate preparation and consumption of food; (

k) You will have no contact, directly or indirectly, with any direct family member of the deceased; (

l) You will abide by a curfew from 12:00 a.m. to 7:00 a.m., seven days per week, except with the written permission of your probation officer for the purposes of confirmed overnight visits with any family members that you may be staying with. You are to carry a copy of such written permission with you at all times and produce it upon request of a peace officer; (

m) You are to present yourself at the door of your residence to any peace officer to determine your compliance with this condition; (

n) You will attend and participate and successfully complete such programs or treatment or counselling as directed by your probation officer which may include but not be limited to substance abuse issues; (

o) You will not associate with anyone named by your probation officer who your probation officer deems to be a detriment to your programming, counselling or reintegration into the community.

[ 68 ] Now Mr. Cardinal, I have read a number of probation conditions. Do you understand them? [ 69 ] THE ACCUSED: Yes, sir. [ 70 ] MR. DUNCAN: My Lord, I wonder if I could make a submission on those conditions. It is actually an addition. [ 71 ] THE COURT: An addition? [ 72 ] MR. DUNCAN: Yes. [ 73 ] THE COURT: Sure. [ 74 ] MR. DUNCAN: And that is there has been an indication he wants to participate in restorative justice. I know the victims do not want it yet. At some point in the future it may be that the parties wish that and they may express that to his probation officer.

I wonder if we could adjust the no contact to say except with the advanced written permission of the probation officer. That would allow the probation officer to set this up. [ 75 ] THE COURT: Ms. Golinsky? [ 76 ] MS. GOLINSKY: I believe again there is a centre term for that. That is something that may, over the next, I guess, we have sort of a five-year window or so here. [ 77 ] THE COURT: Yes. [ 78 ] MS. GOLINSKY: It may be something that becomes appropriate. [ 79 ] THE COURT: I am content with that. [ 80 ] MR.

DUNCAN: And then the other part of that is you will participate in restorative justice if it becomes available. [ 81 ] THE COURT: I add that to the probation order. Have you got that, Mr. Clerk? [ 82 ] THE CLERK: [Inaudible reply] [ 83 ] THE COURT: You will participate in restorative justice -- [ 84 ] MR. DUNCAN: If it becomes available. We have already seen the grandmother hug Mr. Cardinal and it is a small community, and at some point these people may need to come together to solve their issues between them. [ 85 ] THE COURT: Mr.

Cardinal, you have heard my decision and the amendments to the probation that I have made. I wish you the best of luck in what lies ahead. I encourage you to use your time while incarcerated and afterwards while on probation wisely and productively. Yes, Ms. Golinsky? [ 86 ] MS. GOLINSKY: I did have just a couple of comments as well about the probation conditions. With respect to the curfew from 12:00 a.m. to 7:00 a.m., I think it would be – excuse me – the comment I have, the exception for emergency, medical emergency purposes. [ 87 ] THE COURT: You are right. [ 88 ] MS.

GOLINSKY: And there is a standard wording there. [ 89 ] THE COURT: Use the standard wording on that. I did not have it available when I got to it. [ 90 ] MS. GOLINSKY: Fair enough. And the other thing is, as he is to attend counselling including a residential treatment program and perhaps the counselling so I guess this is twofold.

The counselling condition I would suggest should include a recommendation without limiting the generality of this condition, particular emphasis should be on a residential treatment program, and then the curfew should allow him to be out for the purposes of attending any kind of residential treatment program. [ 91 ] THE COURT: Mr. Duncan? [ 92 ] MR. DUNCAN: Those all make sense. [ 93 ] THE COURT: All right. We will amend that order according – [ 94 ] MS. GOLINSKY: And then I have one other comment as well, My Lord, I apologize.

The three-year driving prohibition from driving, now is that a condition of the probation or is that a s. 239? [ 95 ] THE COURT: Sorry, that should have been – yeah, you are right. That is not a condition of probation, that is an order I am making under

section – [ 96 ] MS. GOLINSKY: I think it is 259 I believe. [ 97 ] MR. DUNCAN: It is. It is 259. [ 98 ] THE COURT: And which Mr. Cardinal you should know is the maximum I can order for a first offence of this kind.

[ 99 ] MS. GOLINSKY: There we go – under s. 259(2) for Mr. Clerk's benefit and it would commence after the – [ 100 ] THE COURT: Upon his release. [ 101 ] MS. GOLINSKY: -- Upon his release. [ 102 ] THE CLERK: And on which counts [indiscernible/away from microphone] [ 103 ] THE COURT: Oh and then there are the other counts, too, we have to deal with. [ 104 ] MS. GOLINSKY: Pardon me, oh so the driving prohibition would that attach to all four counts? [ 105 ] THE COURT: It attaches to all four. [ 106 ] MS.

GOLINSKY: Okay, and I think if we have any issues drafting the probation order will be in touch with the Court Yes, I am sure [indiscernible]. The Court – oh, one other comment with respect to conditions, I apologize. Just because Chetwynd is a small community, the Court did ask that he present himself at the door to confirm compliance with the curfew, sometimes phone checks are actually a little bit more suitable just because of distance in travelling.

I expect that a probation officer or peace officer may check his curfew compliance by phone so sometimes we – I don't know if the Court wishes that or just door checks. [ 107 ] MR. DUNCAN: He does not always have a phone -- [ 108 ] THE COURT: People still have phones these days? [ 109 ] MR. DUNCAN: He does not always have a phone but he is okay with it as long as they are prepared to work with the fact he may not always have a phone. [ 110 ] MS.

GOLINSKY: And that is something that he would provide his probation officer with when he reports thereafter and he provides his address and phone number and such. [ 111 ] THE COURT: I am content with that too. [ 112 ] MS. GOLINSKY: So we would add that phone condition then, thank you. I think subject to those comments, Crown is directing a stay of proceedings on the balance of the 12 counts, so Counts – [ 113 ] THE COURT: Counts 5 through 12 inclusive are stayed? [ 114 ] MS. GOLINSKY: Yes. [ 115 ] MR. DUNCAN: My Lord, just one other thing I will ask.

Will the Court allow him to give his sisters a hug goodbye? [ 116 ] THE COURT: I think so. The Sheriffs are here. [ 117 ] MR. DUNCAN: Thank you. [ 118 ] THE COURT: All right. Thank you. “Weatherill, G.P. J.”