R. v. C.T. Date:, 2014 BCPC 42

Citation: R. v. C.T. Date: 20140307 2014 BCPC 0042 File No: 37153-2-KC Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.T. REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: M. L. Ahrens Counsel for the Defendant: B. Gilson, Q.C. Place of Hearing: Prince George , B.C. Date of Judgment: March 7, 2014 [ 1 ] THE COURT: On October 29, 2013, I found C. T., the defendant, guilty of aggravated assault on her then partner and guilty of

assaulting a peace officer. That decision can be found at 2013 BCPC 312 , 2013 BCPC 0312. I do not intend to review in detailthe evidence and findings of fact in this sentencing decision that I set out in the decision after trial. But in

summary, the defendantstabbed her partner multiple times during an alcohol-fuelled disagreement between them. Two of the wounds were superficial, one wasconcerning, and one was very serious requiring medical intervention to avoid the victim's possible death. [2] When arrested and taken to the RCMP detachment, the defendant lashed out at the RCMP members but was subdued by them. [3] The defendant has been in custody since the events of February 3, 2013, a total of 397 days.

She was pregnant when she wentinto custody and gave birth to what is now her third child who is now under the care of the Ministry of Children and FamilyDevelopment. The defendant was not permitted to care for her child after its birth while in custody up to this point. [4] The defendant has three children. The two elder ones are in the care of family and are 10 years old and eight years oldrespectively. [5] The defendant is 26 years old and is a member of the Sturgeon Lake Cree First Nation.

She was placed in the care of fosterparents at the age of two and lived under the authority of the Children’s Representatives in Saskatchewan from the age of two on and offuntil she was 18.

At times, when she had contact with her mother during her youth and adolescence, she came in contact with a partner ofher mother's who sexually abused her. [6] The defendant's father is very ill with diabetes-related blindness, and the defendant provided care to him in Saskatchewan untilshe relocated to British Columbia in the months immediately preceding the offences at bar. [7] The defendant has had a past history involving drug and alcohol abuse but has been drug-free for three years, although she stillstruggles with alcohol. [8] The defendant's criminal record dates back to 2008 and consists of numerous breaches of bail, probation, and conditionalsentence orders and a few offences involving property, concealed weapons, or indecent conduct.

She has no criminal convictions since2010 prior to these offences. [9] The Crown seeks a sentence in a federal penitentiary, as well as a s. 109 firearms prohibition and a mandatory DNA order forthe aggravated assault, and a concurrent sentence of up to two months for the assault on a peace officer. [10] In support of that position, the Crown provided the court and relies upon numerous cases, including the following: R. v. Berry,2014 BCCA 7; R. v. Addicott, 2003 BCSC 737; R. v. Whitman, 2006 BCSC 865; R. v. Biln, 1999 BCCA 369; R. v. Roach, 2012 BCSC2035; R. v. Mickey, 2006 BCSC 577; R. v.

Anderson, 2008 BCPC 4 , 2008 BCPC 0004; R. v. Roslin, 2001 BCSC 1762; R. v.Kakakaway, which is not reported but was a decision of the B.C. Court of Appeal rendered on January 16, 1996; R. v. Street, again whichis not report but was rendered by the B.C. Court of Appeal on June 7, 1996; and R. v. Flores, 2005 BCPC 13 , 2005 BCPC 0013. [11] The Crown contends that the range of sentence for the offences that Ms.

T. has been found guilty of, particularly the aggravatedassault, is between 16 months and six years, but it should be noted that the maximum sentence for an aggravated assault is a 14-yearsentence. [12] The Crown relies on what it says are two main factors which should lead the court to conclude a penitentiary sentence isappropriate: firstly, that the assault was a domestic assault in the victim's own home with almost tragic consequences; and secondly, thatthe violence visited upon the victim was ongoing and somewhat premeditated and occurred as the victim was trying to escape. [13] The Crown also submitted that the defendant has done little to improve herself while in jail, although parenthetically, she hasrecently been taking some programs which are the type of programs available to a person housed at the provincial correctional centrewhile on remand.

There are other programs that Ms. T. would not be able to avail herself with until she was sentenced. [14] Defence counsel reviewed the defendant's personal circumstances both before and since her present incarceration. He notedthat she has been under the care of a psychiatrist while in custody and is receiving a prescription for mood stabilization arising frompostpartum depression. Given that her youngest child is residing in foster care in Prince George and her psychiatrist is in Prince George,defence counsel urged the court to impose a provincial jail sentence followed by a lengthy period of probation.

Counsel also suggested,but did not vigorously pursue, that the defendant may be eligible for enhanced pre-sentence credit due to being separated from heryoungest child. [15] Although the defendant is aboriginal, her counsel advised the court that she did not wish a pre-sentence report or a Gladuereport to be prepared prior to sentencing.

However, when the defendant came before the court today for to sentencing, she stated that shewished a Gladue report to be prepared but then, after further consultation with her counsel, she again confirmed to the court that all therelevant information concerning her aboriginal background and her upbringing had been provided to the court and she wished to proceedto sentencing. [16] In an earlier court appearance, I had inquired about any programming available to allow for mother and babies to reside togetherin a correctional institution setting given the recent decision of the B.C.

Supreme Court in the matter of Inglis v.

British Columbia, 2013BCSC 2309, in which the court determined that the steps taken by the Provincial Government of British Columbia to cease the motherand baby program for women incarcerated was not an appropriate course of action and, in fact, was a breach of the Charter rights of thewomen involved. [17] Defence counsel also advised that there are a number of options available for a mother and baby program, particularly in thefederal sphere, and that the federal corrections service has taken steps since the decision of the Supreme Court of British Columbia toenhance that program. [18] Counsel also confirmed that depending on the length of the sentence imposed, the defendant could possibly apply for a

federal/provincial transfer to allow her to serve her jail time nearer to where her youngest child is residing. [19] The defendant is entitled to rely upon s. 718.2(

e) of the Criminal Code in the sentencing approach to be applied by the courtwith regard to her matters as first stated in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and as restated in such cases as R.v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433, by the Supreme Court of Canada, and R. v.

Napesis, 2010 BCCA 499, by theBritish Columbia Court of Appeal. [20] Given the defendant's contradictory statements on the issue of whether or not any pre-sentence report and particularly a Gladuereport should be prepared, I have carefully considered whether I should order a Gladue report in any event as I am permitted to dopursuant to s. 723(3) of the Criminal Code.

However, I note that the defendant is represented by one of the most senior criminal defencecounsel in Northern British Columbia, a Queen's Counsel, who has much experience in representing First Nations people before thecourts and who has taken great pains to meet with and confirm and reconfirm the defendant's wishes in this regard. [21] Furthermore, I accept counsel's submissions that the defendant is satisfied that the information the court already has concerningher background would not be enhanced or aided by any such report. [22] In arriving at a fit sentence, I have considered the trial evidence and findings, the defendant's personal background andcircumstances, the defendant's criminal record, the case law provided by the Crown, the able submissions of both counsel, and thedefendant's own comments to the court that she wished to continue to see her baby and eventually be a mother to that child. [23] Based on everything I have considered, I find the following to be aggravating factors: 1. the level of violence exercised by the defendant; 2. the nature of the injuries suffered by the victim; 3. the continuing aggression as exhibited by the defendant in the RCMP lockup several hours later; 4. the defendant's criminal record as it pertains to her ability to comply with court direction. [24] On the other hand, I find the following to be mitigating factors: 1. the defendant's upbringing and the abuse visited upon her as a child resulting, I conclude, in part, in her choice of lifestyle asan adolescent and an adult; 2. her relatively minor criminal record overall; 3. her relative youth at the age of 26; 4. the impact on her from being separated from her baby resulting in a compromised mental health situation; 5. her willingness to seek out assistance for that mental health issue and her wish to maintain that relationship with her psychiatristgoing into the future; 6. her limited involvement in programming at the institution but her involvement, nevertheless, in circumstances where she is notable to take all the programs available. [25] In considering all of those factors, a fit sentence for this defendant, in my view, should include the following. [26] Ms.

T., please stand up. [27] I am required by law, Ms. T., because the aggravated assault is a mandatory firearms prohibition, to impose a firearmsprohibition on you. [28] Madam Clerk, it is Number 164. [29] You are prohibited from possessing any firearm, other than a prohibited weapon or restricted weapon, and any crossbow,restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm,prohibited weapon, prohibited device, and prohibited ammunition for life. [30] Now, I note, Ms. T., that you are an aboriginal person.

If you choose to participate in sustenance hunting, you can makeapplication to the firearms officer to get exemptions from that prohibition, if you need a weapon, in other words, to go and hunt for foodfor ceremonial or food purposes. [31] The second order I am going to make is a DNA order, which again is a primary designated DNA offence for the aggravatedassault. [32] Madam Clerk, that is Number 161. [33] Pursuant to s. 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samplesof bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic

DNA analysis and registration in the DNA national databank from C. T. by May 31, 2014. [ 34 ] With regard to the assaulting of a peace officer, I am imposing a sentence of 45 days in custody. That sentence will be concurrent to the sentence for the aggravated assault. In my view, the peace officers involved in the altercation with you were doing nothing more but attempting to have you cooperate with them, and your behaviour in lashing out to them was not acceptable. [ 35 ] With regard to the aggravated assault, I have taken into account all of the factors I have already listed.

I have taken into account the circumstances that you find yourself in as well as the circumstances of the offence and everything else I have already set forth in these reasons, and in my view, the appropriate sentence for you would be a sentence of two years less one day in a provincial institution followed by two years of probation. [ 36 ] I do that because I believe it is sufficient to denounce and deter your behaviour in committing these offences, but I am equally as concerned in making sure that I provide the necessary opportunity for you to demonstrate your stated intention to be an active and appropriate parent to your child and to engage in pro-social activities as a member of our community, including attending college for the purposes of learning more about artistic design. [ 37 ] So it will be two years less a day less time served, Madam Clerk.

The proper sentence would have been 729 days. She has served 397 days. She has 332 days left to serve. [ 38 ] You, of course, will get credit for good behaviour over time, and that sentence will be somewhat less than the 332 days. [ 39 ] The probation order for two years, Madam Clerk, will have the following terms and conditions. [ 40 ] You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 41 ] 102P, Madam Clerk. Within 48 hours after completing your jail sentence, you shall report in person to the probation office located nearest to the place of your release from custody, and after that you shall report as and when directed by the probation officer. [ 42 ] 105P, Madam Clerk.

When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to the probation officer. [ 43 ] 116P, Madam Clerk. You shall have no contact or communication, directly or indirectly, with I. H., except as follows - subparagraph (c), Madam Clerk: for the purpose of arranging, facilitating, or exercising access to your child in accordance with a family court order or a written separation agreement. I do so, Ms.

T., because if you are successful and the child is returned to your care, based on the evidence I heard from Mr. H. during the trial, he wants to at least contribute to that child's upbringing and he may wish to have some contact with the child, so I do not want you to be in breach of the order if such arrangements are made. I am not saying they will be, but I do not want you to be in breach if some arrangements are made in that regard. [ 44 ] Number 123, Madam Clerk.

You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 45 ] Number 124: You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premises from which minors are excluded by the terms of their liquor licence. [ 46 ] Number 134. You shall not possess any knife outside of your residence except for the immediate preparation or eating of food or for purposes directly and immediately related to your employment. [ 47 ] 142P, Madam Clerk.

You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer. Without limiting the general nature of this condition, such assessment, counselling, or program may include and relate to anger management, alcohol or drug abuse, a full-time attendance program for alcohol or drug abuse, and you shall comply with all the rules and regulations of any such assessment, counselling, or program. [ 48 ] Now, Madam Clerk, I am going to also put in Number 141P. You shall (

a) make application to and, if enrolled, attend school regularly and not be absent except in accordance with a medical certificate or the advance written consent of the probation officer, or (

b) make reasonable efforts to seek and maintain employment approved by the probation officer, (

c) if on any occasion you report to the probation officer and you are not actually employed, you shall provide the probation officer with a report describing the efforts you have made to find employment or become enrolled in an educational institution since your last report. Such report may be verbal or written in the discretion of the probation officer. [ 49 ] Now, Ms. T., one of the reasons why I opted for the sentence that Mr.

Gilson was advocating, including a period of probation, is because I accept that once you are out of jail, you want to pursue your art and you want to pursue being a pro-social member of our community. In order to do that, you are obviously going to have to pursue some training, you have said so yourself, and/or find work to support yourself and perhaps your daughter, so you are going to have to let Probation know what you are up to about that. We are not going to just sit around watching television for the two years you are on probation. [ 50 ] I did consider imposing a Rogers order, Mr. Gilson.

You made a vague suggestion to that at one point, but I accept that Ms. T. has a good relationship with Dr. Morgan, and I know Dr. Morgan will continue to assist her for as long and as much as he can both while she is in custody and perhaps even while she is on probation because he is just that kind of a fellow. [ 51 ] I am, however, going to make an order under 149, Madam Clerk. You must carry a copy of this probation order with you at all times when you are in public. If you are stopped by a peace officer for any reason, you shall immediately provide the peace officer with

a copy of this document without being requested to do so. [ 52 ] Now, Ms. Ahrens, I know I caught you a bit unawares by imposing a probation order, perhaps, but are there any other terms you think might be necessary in order to assist this person? Or would you like the afternoon break to consider it? [ 53 ] MS. AHRENS: No, I think Your Honour has covered it, the employment and education and so on and so forth. What does Your Honour propose to do about the victim fine surcharge? [ 54 ] THE COURT: I am going to waive it in the circumstances. It is pre the amendments to the legislation. Obviously, Ms.

T. does not have any funds now. When she does get out, I would hope that she would devote her time to earning money to either maintain herself and/or take steps to get her child back into her care, which would then be far better use of the money than providing it to the government. [ 55 ] Mr. Gilson, anything else that we need to address today? [ 56 ] MR. GILSON: The only comment that I had is, Your Honour made a no-contact order with I. H. except through a family maintenance type order or such arrangements. If that could be broadened out to include through legal counsel as well.

I see a preliminary step where lawyers may be involved. [ 57 ] THE COURT: Yes, that is a good point. [ 58 ] MR. GILSON: That is the only comment I had, Your Honour. [ 59 ] THE COURT: Yes. Madam Clerk, on Number 116P, it will also include through legal counsel and also (

e) while in attendance at court, in case they have to go to court over a family proceeding. (REASONS CONCLUDED)