R. v. Gabriel Date:, 2016 BCPC 153

Citation: R. v. Gabriel Date: 20160108 2016 BCPC 0153 File No: 3663-1 Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GINO GABRIEL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: H. Chambers Place of Hearing: Pemberton , B.C. Date of Hearing: January 8, 2016 Date of Judgment: January 8, 2016

[1] THE COURT: All right, I am not going to give any formal reasons. I am going to consider the entire proceeding and mycomments to be my more or less formal reasons. [2] Mr. Gabriel, there are a number of things I have to consider when imposing sentence. There are principles set out in theCriminal Code that apply, and I have to balance and weigh all of those factors together, those principles of sentence. [3] And as I talked about earlier, I have to consider the nature of this offence which involved pouring gasoline on people, andapparently, we will never know, reaching into your pocket to grab a lighter.

You know what the effect of that has been. It is a seriousoffence, and it is an offence where whatever sentence is imposed, it has to send a message to the community, that that kind of conductwill not be tolerated, and also that it is very much against our norms or what we consider to be acceptable behaviour. [4] I have to consider a sentence that is proportionate, so one that is balanced, with the gravity of the offence, as well as yourresponsibility for it.

And I will get to that with respect to your background as an aboriginal person. [5] In terms of specific deterrence, there are concerns in the reports about your level of understanding and your acceptance ofresponsibility. I agree with Mr. Chambers that some of that is due to your having fetal alcohol effect and a limited ability to process thatkind of information and to express yourself. [6] I accept that you do understand how serious your behaviour was, and that with appropriate supports, you can take thisexperience and move forward and accept responsibility for what you did.

You certainly expressed that today. [7] I also have to consider whether whatever sentence I impose can serve - and in particular with First Nations communities - arestorative or reparative purpose. So that means giving back to your community, giving back to Mr. Andrew. [8] You know, one of the best things you could do for him is rehabilitate yourself and become somebody that he can live with inhis community. He spoke very kindly of you. In this world where we have reality TV and everyone is taking jabs at each other andbeing consciously cruel and malicious, that is now somehow a model of how humans should be.

But, this is what it is truly like, right? It was so very humane what he has said today. You should be more like him because it is a huge thing for him to come here today andforgive you, to express acceptance of you, to wish you well. So you should honour that going forward. [9] And I have taken into account your views, Mr. Gabriel, as much as I can, at law. So hopefully in time you will return to thecommunity and you can pay back your community and Mr.

Andrew again. [10] And, of course, I have taken into what we call your antecedents, your background as a First Nations person, and as I indicatedearlier, at law, all of those circumstances serve to reduce your moral culpability for this offence. [11] I have also considered the need for your continuing rehabilitation. There are positive prospects for your rehabilitation. Indeed,all you need to do is maintain your sobriety and we will not see you back before the courts again.

And I think you can do that, and I amhoping that this is the shock that you need to ensure that that was your last drink ever. [12] One of the things I have to do under the Criminal Code, specifically Section 718(2)(

e) is consider all alternatives other thanincarceration for First Nations offenders because there are far too many in jail as a result of all the social dysfunction. It is an irony, tosay the least, that after imposing all of this on you historically that we then put you all in jail. Somehow that is something that has to bechanged. So I am taking that into consideration again. [13] I have considered the case that Mr. Chambers provided, R. v.

Holmes, [1999] B.C.J. 737, and from a legalistic standpoint thatcase was really about whether or not a conditional sentence or jail was appropriate and whether the judge had erred in failing to impose aconditional sentence as opposed to the actual length of the sentence itself. [14] There is also a distinguishing point in this case in which that man said, "If I had a match I could torch you," and did not makeany move toward, or make that victim believe that he might be lit on fire. It was, nevertheless, a rather egregious set of circumstances. [15] I have also considered a more recent case that is called R. v.

Hansen, [2014] B.C.J. 764. This is a case from our Supreme Court,Mr. Justice Butler, and he was dealing with a woman on the Downtown Eastside who was a drug addict, and who had attacked a womanon the street with a broken beer bottle and cut her quite badly. But she had taken very significant steps toward her rehabilitation. [16] But what Mr. Justice Butler talks about is wherever possible we should be looking to impose what he calls "innovativesentences." So I have considered the principles in that case. [17] I have also considered some earlier B.C.

Court of Appeal cases, just in terms of their general principles, but they do involveviolence. R. v. Jack, 2008 BCCA 437 , [2008] B.C.J. 2078 involved a beating death, so actually someone who was kicked andbeaten to death. That fellow, who had a reasonably similar background to yours, received a three-year prison sentence. [18] R. v. Morris is a very eloquent decision from our then Chief Justice Finch, [2004] B.C.J. 1117 and was also a very violentoffence. It did involve an intimate partner, but a significant beating and stabbing.

In that matter there was a one-year custodial sentence,taking into account the circumstances of that First Nations offender. [19] An earlier case, R. v. M.S.R., [2002] B.C.C.A. 268, dealt with s. 718.2(

e) and R. v. Gladue. It was a violent offence involving ahusband and wife, and there was a 21-month conditional sentence imposed. [20] I cite those cases, not so much for the range of sentence that is appropriate, but for all the principles and discussion that arecontained in those cases.

[ 21 ] If I impose a two-year sentence on you, it will still mean that you will spend - if my calculations were correct - a full year in custody with remission at the end of it. Do you understand what I am saying there? [ 22 ] THE ACCUSED: Yes. [ 23 ] THE COURT: Okay. So you have spent nine months in jail so far, and if I impose two years, you will spend the equivalent anyway of a full year in jail.

The sentence will actually be longer because you will be on parole for a period after that. [ 24 ] In all the circumstances, I am persuaded that the more lenient position taken by your counsel is appropriate, and you have Mr. Andrew to thank for that to a great extent. You have Mr. Andrew to thank, and the other victim, Mr.

Larsen, to thank, and you need to be grateful to them for the very reasonable position they have taken because you were facing charges that were, of course, much, much more serious. [ 25 ] So once again, I just repeat this, and I hope you can take it to heart, that you should always from this day forward honour that generosity of spirit that they have shown you and their compassion for and acceptance of you.

But for the victim's position I likely would have imposed the sentence suggested by the Crown, a much longer sentence. [ 26 ] So there will be a two-year less a day sentence, and the reason I say the "less a day" is because it means that you will serve your sentence in a provincial institution rather than a federal institution. I gather that is what has been considered -- that is what you are asking for, being provincial time. [ 27 ] Then there will be probation for a period of three years, and that is the maximum period of probation allowed.

I am giving you credit for nine months actual time served, and enhanced credit, for a total of 13-and-a-half months. [ 28 ] So the sentence now of new time, and I hope my math is right here, is 11-and-a-half further months. If you take off one third for remission, that is about eight further months that you are going to have to serve. Sorry, I did not mean a year, I meant it was close to 18 months actual time in custody. I was wrong saying a year. [ 29 ] I will order that you provide a sample of your DNA. Pursuant to

Section 109 of the Criminal Code there will be a firearms prohibition. Do you hunt for -- [ 30 ] THE ACCUSED: Hunt?

I fish. [ 31 ] THE COURT: Oh, you fish, okay. [ 32 ] THE ACCUSED: Yes. [ 33 ] Okay, so for a period of 10 years you must not be in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or all such things and any related authorizations, licences and registration certificates. [ 34 ] Do you have any such items to surrender? [ 35 ] THE ACCUSED: No, I don't. [ 36 ] THE COURT: In terms of the probation, the first term will be that you will keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 37 ] You will report to a probation officer -- you are going to be living in Vancouver?

Your uncle is on West 8th, East 8th? [ 38 ] THE ACCUSED: My stepfather? [ 39 ] THE COURT: Stepfather, right. [ 40 ] THE ACCUSED: Yes. [ 41 ] THE COURT: Okay.

So you will report within 72 hours of your release from custody to the Vancouver East Probation Office on Commercial Drive, and I will delegate to the clerk of the court to insert that address, and report thereafter as and when directed. [ 42 ] You will reside as directed by your probation officer and not change that address without their prior written permission. [ 43 ] You are to have no contact direct or indirect with Leonard Andrew or Jacob Larsen, save and except for the purpose of participating in any victim/offender reconciliation program with the consent of Leonard Andrew or Jacob Larsen. [ 44 ] You are not to attend to any residence, place of employment or place of education at which you know Leonard Andrew or Jacob Larsen to reside, work or attend. [ 45 ] You are not to be found within Pemberton or Mount Currie, save and except with the prior written permission of your bail supervisor and with the consent of the Chief of Council of the Mount Currie Band. [ 46 ] So what that allows you is that if there are things going on here, such as healing programs, cultural events, you can ask your probation officer to contact the community and see if you are welcome.

They can then contact Mr. Andrew and Mr. Larsen for those specific purposes. What I am thinking about are - I am more familiar with the Coast Salish - but cleansing ceremonies, other restorative ceremonies that you might want to engage in.

[ 47 ] THE ACCUSED: Grieving. I'm just -- in grieving death and stuff like -- [ 48 ] THE COURT: Yeah, exactly, if there is a death or something. Okay? So it is not going to be an absolute no-go. [ 49 ] And he is consenting to residential treatment on the probation? [ 50 ] MR. CHAMBERS: He is, yes. He is -- he is consenting to attending a residential treatment program. [ 51 ] THE COURT: All right.

You will attend for, accept and complete, to the satisfaction of your probation officer, any residential treatment program or counselling to include, but not limited to, substance abuse management counselling, trauma counselling or anger management counselling. [ 52 ] When residing at any residential treatment centre, you must obey all the rules and regulations, including any curfew. [ 53 ] You must abstain absolutely. Do you know what I mean by abstain? [ 54 ] THE ACCUSED: Mm-hmm. [ 55 ] THE COURT: From the possession or consumption of alcohol.

Do you have any issues with -- I think the report indicates that he smoked marihuana? [ 56 ] MR. CHAMBERS: Yes, there was reference to marihuana use, I think, in the report. [ 57 ] THE COURT: Do you want me to include no marihuana? [ 58 ] THE ACCUSED: Oh, sure, yes. [ 59 ] THE COURT: Okay.

So you will abstain absolutely from the possession or consumption of alcohol, or any drugs or substances scheduled in the controlled drugs and substances act, save and except according to a medical prescription, and then only according to the dosage prescribed. [ 60 ] Who knows, it may not be very long -- [ 61 ] THE ACCUSED: Yes. [ 62 ] THE COURT: -- before marihuana is in fact no longer a scheduled substance under the Controlled Drugs and Substances Act. [ 63 ] You are not to be found in possession of any weapons or imitation weapons as defined by the Criminal Code of Canada . [ 64 ] MR.

CHAMBERS: I wonder if Your Honour would make an exception as relates to a knife for purposes of -- obviously both with respect to -- [ 65 ] THE COURT: Okay. [ 66 ] MR. CHAMBERS: -- food, but also with respect to carving, because he does carve. [ 67 ] THE COURT: All right. You are not to be found in possession of any knives, except for the immediate preparation or consumption of food, or such knives as are necessary, to carry out any food gathering or for any cultural purposes, such as carving. [ 68 ] You will participate in any victim/offender reconciliation program as directed by your probation officer.

I am also going to include this: you will attend the Warriors Against Violence Program and complete same to the satisfaction of your probation officer. Do you know about that program? [ 69 ] THE ACCUSED: No, I don't. [ 70 ] THE COURT: Okay, well, it is a program that operates in Vancouver. It is a very positive program, it is kind of a group setting, where First Nations people sit and talk very much about some of the issues that we talked about today, and learn about your history.

It goes on at the Friendship Centre down on East Hastings which will not be far from where your stepdad lives. [ 71 ] THE ACCUSED: Okay. [ 72 ] THE COURT: Is your stepdad sober now? [ 73 ] THE ACCUSED: Yes, he is. [ 74 ] THE COURT: Okay, how long has he been sober? [ 75 ] THE ACCUSED: Three years. [ 76 ] THE COURT: Okay. They also have AA at the Friendship Centre in Vancouver. [ 77 ] THE ACCUSED: Yes, they do. [ 78 ] THE COURT: Are you aware of the Aboriginal Transformative Justice Services Society in Vancouver? [ 79 ] THE ACCUSED: No, I'm not.

[ 80 ] THE COURT: I am also going to include the term, that you will attend to the Aboriginal Transformative Justice Services Society, or the Native Court Worker and Counselling Association, as directed by your probation officer to receive any services or programming from them. [ 81 ] THE ACCUSED: All right. [ 82 ] THE COURT: And that is really more or less for, you know, when you are released and in Vancouver, and not here with your band, that you can access the services that are available in Vancouver, and in that area. [ 83 ] THE ACCUSED: All right. [ 84 ] THE COURT: Are there any other terms or conditions that -- [ 85 ] MS.

ASHTON: Just the surcharge. [ 86 ] THE COURT: Oh, yes. [ 87 ] MR. CHAMBERS: I would make the usual submission that it be payable forthwith, that he be found unable to pay and one day in default. [ 88 ] THE COURT: Yes. I will find that you do not have the ability to pay a victim fine surcharge, and I will waive the requirement for you to pay that. So I will find you in default, and impose one day on each count, concurrent one to the other and concurrent with the sentence I have just imposed. [ 89 ] MR.

CHAMBERS: And just with respect to the sentencing, Your Honour, I -- my calculation, Your Honour's intention is for there to be a further 10 point -- 10-and-a-half months. You're giving him credit for 13-and-a-half -- [ 90 ] THE COURT: Twenty-four plus 13.5 should leave 11.5? [ 91 ] MR. CHAMBERS: 10.5? [ 92 ] THE COURT: Oh, yeah, you are right. [ 93 ] MR. CHAMBERS: -- so he would have 10-and-a-half months left to serve. That's the intent of Your Honour's sentence? [ 94 ] THE COURT: It is. [ 95 ] MR. CHAMBERS: Yes. [ 96 ] THE COURT: Oh, actually there is one other term I meant to impose, sorry. [ 97 ] MR.

CHAMBERS: I just want to canvass the question whether he needs to come back to court in order to be able to reside back in Mount Currie or whether that is something that is -- Your Honour's leaving to the band.

Your Honour's addressed the question of him not coming to Pemberton or Mount Currie unless he has the permission of the band to come back, but doesn't -- that doesn't seem to canvass the question of when or if Your Honour's prepared to consider when he could return to residing back in Mount Currie. [ 98 ] THE COURT: Should we have that, something that the court decides, or should we leave it with the community? [ 99 ] MS. ASHTON: Well, I -- the Crown would like to see proof of residential treatment completion. [ 100 ] THE COURT: Yeah. [ 101 ] MR. CHAMBERS: I agree with that. I agree -- [ 102 ] MS.

ASHTON: So -- [ 103 ] THE COURT: Yeah, okay. [ 104 ] MR. CHAMBERS: -- he ought not to return -- [ 105 ] THE COURT: No, I think what -- [ 106 ] MR. CHAMBERS: -- until after he has successfully completed a residential program. [ 107 ] THE COURT: Just so that it is clear, I will say you must not reside in the Pemberton or Mount Currie area without the prior permission of the court. [ 108 ] MR. CHAMBERS: Okay. [ 109 ] THE COURT: So that means that that should be then clear to everyone.

So that means you have to come back to court, either before me or another judge, and establish if it is safe for you to come back here. That you are sober, you are through treatment. If you are there, Mr. Andrew can feel confident, Mr. Larsen can feel confident, and everyone else can feel confident that they will be safe. [ 110 ] I am sorry, the last term was that on your probation -- I am going to have you perform 100 hours of community work service under the direction of and to the satisfaction of your probation officer, within the first two years of your period of probation.

That community work service is to be done for the benefit of the Mount Currie Band, or the Lil'wat Nation, or any other First Nations

peoples. Okay, so if you are still in Vancouver you can get started doing volunteer work there. [ 111 ] THE ACCUSED: All right. [ 112 ] THE COURT: Mr. Andrew, is there anything that you want to ask about -- [ 113 ] LENNY ANDREW: No, I think that's -- I think that's great. The only other concern I've ever had is because this is twice now that incidents like this has happened, and twice he's been to Joby Phillips' house on Main Street, and I'm just wondering of the possibility that no go Joby Phillips' -- don't go to Joby Phillips' house.

That's the only other thing I ask of because -- [ 114 ] THE COURT: Okay. [ 115 ] LENNY ANDREW: I don't know if it's a possibility or not, but that's the only concern that I have, that's it. [ 116 ] THE COURT: And this happened at Joby Phillips' house? [ 117 ] LENNY ANDREW: He was drinking -- [ 118 ] MS. ASHTON: No, he went there afterwards. [ 119 ] THE COURT: Oh, I see. Oh, I see, he was drinking there before and then went there after? [ 120 ] LENNY ANDREW: Just cause this has happened before. This is the second incident that I'm aware of. And that's the only concern I have is no go Joby Phillips.

That's the only concern -- [ 121 ] THE COURT: Do you think he is a bad influence? [ 122 ] LENNY ANDREW: Yeah. [ 123 ] THE COURT: What do you say to that? [ 124 ] THE ACCUSED: Yes, I'll consider that, yes. [ 125 ] THE COURT: Okay. [ 126 ] THE ACCUSED: Yes. [ 127 ] THE COURT: Okay, so by consent? [ 128 ] MR. CHAMBERS: By consent he would agree to a no -- no go -- [ 129 ] THE COURT: So no contact and no go? [ 130 ] LENNY ANDREW: No contact, no go to Joby Phillips' place. [ 131 ] THE COURT: Okay. [ 132 ] MR.

CHAMBERS: Joby Phillips' -- [ 133 ] THE COURT: Okay, so we will have you are not to have any contact whatsoever -- you are not to have any contact direct or indirect with Joby, J-o-b-y -- [ 134 ] LENNY ANDREW: I don't know his real name, but -- [ 135 ] THE ACCUSED: Joseph. [ 136 ] LENNY ANDREW: Joseph. [ 137 ] THE COURT: Joseph, known as Joby, Phillips? [ 138 ] LENNY ANDREW: Phillips, yeah. [ 139 ] THE COURT: Phillips.

You are not to attend to any residence at which you know Joby Phillips -- Joseph, known as Joby Phillips to reside. [ 140 ] LENNY ANDREW: I feel great. [ 141 ] THE COURT: Okay, good [ 142 ] LENNY ANDREW: I feel like there's closure. Thanks -- I just want to say thank you for, you know, everything, and I don't know what that means at all here, but I'm just glad there's closure today. [ 143 ] And hopefully there's closure with the family too, even though there wasn't very -- you know, I just don't want any -- anything after this, right, because -- you know.

But I just hopefully today it brings closure, you know, to a sense to all this, you know, and hopefully to welcome you back.

[ 144 ] I know for me it was important to have the community by my side after I was charged with [indiscernible] in the past, and that's why I think it's important to have your community by your side to support and, you know, I just -- hopefully to take advantage of this time to heal, you know.

That's all I got to say, I guess. [ 145 ] THE ACCUSED: Thank you for your forgiveness. [ 146 ] LENNY ANDREW: Yeah. [ 147 ] THE ACCUSED: Yes, and I am truly sorry. [ 148 ] LENNY ANDREW: Hopefully we can be friends in the future again -- [ 149 ] THE ACCUSED: Yes. [ 150 ] LENNY ANDREW: -- because I look forward to go fishing or something, you know. Just look back and go -- you know what I mean? [ 151 ] THE ACCUSED: Yes. [ 152 ] LENNY ANDREW: Yeah. That's where I'm at anyway. [ 153 ] THE COURT: Well, good for you, Mr.

Andrew. [ 154 ] LENNY ANDREW: Yeah. [ 155 ] THE COURT: That is a healthy position to take. [ 156 ] Anything further, chief? [ 157 ] LEONARD ANDREW: Just put an "M" in because we have the same name. Can you put Leonard M. Andrew. Sometimes it leads to -- [ 158 ] THE COURT: Oh, yes, okay, let us say Leonard M. -- no contact on Leonard M. Andrew. [ 159 ] LEONARD ANDREW: Yeah. (REASONS FOR SENTENCE CONCLUDED)