R. v. A.T., 2021 BCPC 230

Citation: R. v. A.T. 2021 BCPC 230 Date: 20210914 File Nos: 39688 & 39806 Registry: Tofino File No. 41371 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.T. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: A. Taylor Counsel for the Defendant: P. Hertzberg Place of Hearing: Tofino , B.C. Date of Hearing: September 14, 2021 Date of Judgment: September 14, 2021

[ 1 ] These are the reasons for sentence in the matter of R. v. A.T. For the purposes of publication, the decision will be referred to as R. v. A.T. As well, out of respect to some of the private information that is contained in the reports that are filed with the court. There is no publication ban. A.T. is a young adult charged with crimes. I understand that the public has a right to know about these details, but if anyone wants to err on the side of respect, they will not let her name be known to the public.

CHARGES [ 2 ] A.T. is charged with assaulting her ex-boyfriend, as well as another person in the community. She is also charged with being around her ex when she was not supposed to be, and obstructing a peace officer. [ 3 ] She was intoxicated on these occasions. INTRODUCTION [ 4 ] A judge that sentences a person for a crime usually takes into account the circumstances of the offender and the circumstances of the offence.

Balancing the ‘gravity of the offence’ with the details of the ‘person’ is always helpful. [ 5 ] To say, if you assault someone, you should automatically go to jail or get a criminal record is to forget that sometimes human beings make mistakes. Not all people come from the same background. Not all people should go to jail or get a criminal record. To me this principle is equally applicable for all people charged with crimes. If you are charged with a crime, male or female, Indigenous or of some other cultural background, sometimes you need a break.

Sometimes the difference between getting a break and not getting one is a criminal record. [ 6 ] As an accused, what are your goals? Do you want to finish high school? Do you want to continue with your education? Do you want to have your own company? Do you want to be a counsellor, or a nurse, or a psychologist, or a doctor, or a lawyer or a judge? From the eyes of a young person, the list of possible jobs is long. The world is full of possibilities. [ 7 ] Here is the choice. A criminal record will certainly make it more difficult, if not impossible to do some the things I just mentioned.

Or… we stop, and think twice. [ 8 ] As I pause and think twice, I am reminded of a decision I wrote called R. v. T.L.C ., 2019 BCPC 314 . I rely on that decision, for better or worse.

THE JOINT SUBMISSION [ 9 ] Both Crown and defence jointly submit that the appropriate sentence in this case is an absolute discharge. [ 10 ] One might argue that T.L.C is a decision that stands for reasons where sometimes a Judge should not go along with a joint submission. [ 11 ] Respectfully, this brief decision is an example of how ‘often there are good reasons why a judge should go along with a joint submission’. [ 12 ] In this case, like many cases, there are discussions that take place behind the scenes. In this case it was determined that a Pre- Sentence Report and a Gladue Report would be helpful.

Counsel reviewed these reports. After considering all the circumstances of this accused, they are of the view that the accused should not get a criminal record. In fact, they take it a step further, they submit that this accused does not even need any probation or counselling. [ 13 ] There is a pre-sentence report written by Mr. Dave Paruk. I was going to provide a vetted report with these reasons as it is an example of how a well-written probation officers report can provide insight into the offender’s historical background and future needs.

Instead, in an effort to be sensitive to the private information contained in the report, I will simply pause to say thank you Mr. Paruk for your efforts. [ 14 ] There is also a Gladue Report written by Kelly Batke. This report is also very detailed and an important piece of writing. I was going to provide it in full as an example of how helpful Gladue reports can be. However, once more, there is some information in it that I think is best kept private. However, I do find that it is important for the public to understand some of the background of this community.

I also think it is important for people to understand the huge Gladue factors that many Indigenous people face. Imagine the strength it would take to overcome these traumas. I include some excerpts here about A.T.’s home community: Indigenous Community history Ahousaht A.T. and her parents are part of the Ahousaht First Nation, the largest First Nation of the entire Nuu-Chah-Nulth Nation. Their community is situated on Flores Island located about 12 miles northwest of Tofino, BC. It is accessible only by water or air.

As noted in the Canadian Encyclopedia, the word Ahousaht means “facing opposite from the ocean” or “people living with their backs to the land and mountains” in the Nuu-chah-nulth language. It is the largest of all the Nuu-chah-nulth nations, with a population of 2,191 in 2018. Ahousaht has its own school from K-12. The community also has other amenities, including an RCMP detachment, a 12 room lodge, medical facilities, a community centre and a holistic centre, (known as Chah Chum Hii Yup Tiic Mis), where community members can attend for counselling, meetings, and general camaraderie.

Prior to the arrival of Europeans, the Ahousaht were a fishing community. Fishing, particularly salmon fishing, still remains an integral part of their contemporary economy. Ahousaht is governed by hereditary chiefs (hawiih) who are also responsible for traditional lands and resources (hahuulthi). Since the Indian Act only recognizes elected chiefs, the Ahousaht nation operates with both elected and

hereditary chiefs. This hybrid system includes three principle hereditary chiefs, one elected chief, and an elected council. Similar to other First Nation communities, the Ahousaht people endured displacement from their land from European Settlers starting inthe 1700's. Increased European settlement on traditional Nuu-chah-nulth territories in the 19th century further displaced the Ahousahtonto reserves. In 1903 as part of the Canadian Government’s effort to assimilate Indigenous communities, the Ahousaht residentialschool was formed.

The school had previously been established by the Presbyterian Church as an Ahousaht day school. Communitymembers were forced to abandon their own language, customs, and culture. Residential Schools Ahousaht Day School A.T’s parents, grandparents and many other relatives were forced to attend residential school in either Ahousaht or outside of thecommunity.

While Ahousaht Day School was not officially listed as a residential school, [omitted for publication] reported that theexperience was “just as damaging” as other residential schools. [omitted for publication] believes that A.T’s paternal grandmother mayhave been sent to a residential school. As noted by [omitted for publication], everyone who grew up in the region attended one of theschools. A.T. reported that almost all her grandparents attended a residential school, and that some of them attended Christie ResidentialSchool.

Christie Residential School Christie Indian Residential School was originally established on Meares Island and later was moved to Tofino in what is now Tin-WisLodge. Many members of the nation attended this and other residential schools over many generations. A 2009 book entitled First Nations of the Pacific Northwest: Change and Tradition, shares many stories of those who attendedresidential schools. One Christie Residential School survivor said: “We were tortured by the Brothers, getting hit by a big stick four feet long and two inches wide.

Thirty whacks on my bare ass, I couldn’teven sit down, but I was still forced to sit down. Then I had to get another ten more because I smiled at my friend. I got my ear twistedbecause they said I wasn’t listening. I had my hair pulled by the Sisters, four of them. They tortured me by putting a towel around myneck. This is how they tortured me, they made me black out.” As published in the BC Medical Journal, the Nuu-chah-nulth Tribal Council conducted a survey of residential schools affecting theirpeople.

Their report indicates that, across Canada, there were 11 schools in operation in 1880, 88 schools in 1909, and 60 remaining openin the 1960s. In the 1940s, 8000 native children were attending and in the 1960s 10,000 native children were attending. Forty years latermany of those children and their descendants survive and continue to show evidence of the effects of the residential school system. Of 96individuals interviewed by Nuu-chah-nulth interviewers, 30% to 83% indicate that they were victims of abuse in some form, and morethan half indicate that they continue to have need of counseling, therapy, or healing.

In 2006 the IRS Settlement Agreement compensated IRS survivors for their traumatic experiences. The Truth and ReconciliationCommission (TRC) was mandated to encourage awareness of the systemic discrimination that has caused Indigenous people a long-standing disadvantage. Beyond the documented abuse that was suffered by Indigenous people across Canada, residential schools soughtto assimilate Indigenous people into what was considered at the time a more civilized, European lifestyle. According to Jean Barman(2012), however, this was not the result.

Residential schools removed generations of children from their families, rendering theirIndigenous culture inaccessible at best and demonized at worst. As Barman found, “Indigenous people have the highest rates ofimpoverishment, incarceration, suicide and alcoholism in Canada and much of this can be traced back to the abuse received at residentialschools” (p.255).

In addition to its findings on IRS, in its Final Report, the TRC (2015), noted that, “For over a century, the central goals of Canada’sIndigenous policy were to eliminate Indigenous governments; ignore Indigenous rights; terminate the Treaties; and, through a process ofassimilation, cause Indigenous peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. Theestablishment and operation of residential schools were a central element of this policy, which can best be described as culturalgenocide” (p.1).

THE LAW [15] I will not detail the objectives of sentencing which are well known. However, it is worth reviewing some of the criteria aroundwhen a discharge can be imposed. [16] R. v. Fallofield, (BC CA) is the leading authority as to whether a person should receive a ‘discharge’ versus‘conviction’. Referring to the Criminal Code provision regarding the ability of a judge to impose a discharge, Robertson, J.A. sets out thetest that I must consider:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or theoffence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. CONCLUSIONS [ 17 ] A.T. has no criminal record. Even the probation officer does not see a need for her to report to a probation officer. She has turned her life around.

She has already begun what some might call ‘healing path’. [ 18 ] Today is a new beginning, a new day, and I am excited to see where this young 22 year Indigenous woman goes in the world. If she stays on her path, she can do anything she decides. She does not need my word on this, her class voted her valedictorian when she went back to finish high school. [ 19 ] I want to thank counsel for their hard work. Your joint effort has persuaded me that an absolute discharge is in A.T’s interest.

It is also in the public interest to let her do amazing things, without the burden of a criminal record. [ 20 ] I impose an absolute discharge, you are free to go, have a nice day and come back and let us know how you are doing and share your victories with everyone around you. _____________________________ The Honourable Judge Wolf Provincial Court of British Columbia.