R. v. Cliffe, 2021 BCPC 365

Citation: R. v. Cliffe 2021 BCPC 365 Date: 20211001 File No: 42484-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDDY WALTER CLIFFE and GWEN OLNEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. CROCKETT Counsel for the Crown: T.G. Morgan Counsel for the Accused Cliffe: A.J. Lagemaat Counsel for the Accused Olney: E.K. Chesterley Place of Hearing: Campbell River, B.C. Dates of Hearing: June 23, 2021 and August 27, 2021 Date of Sentence: October 1, 2021 [ 1 ] THE COURT: Mr. Cliffe and Ms. Olney have pleaded guilty to intentionally causing damage by fire to a dwelling house, the

[ 1 ] THE COURT: Mr. Cliffe and Ms. Olney have pleaded guilty to intentionally causing damage by fire to a dwelling house, the property of the Campbell River Indian Band, also known as the Wei Wai Kum First Nation, contrary to s. 434 of the Criminal Code . [ 2 ] Mr. Cliffe and Ms. Olney set fire to the house together on June 25, 2019. [ 3 ] Mr. Cliffe is Ms. Olney's son. He is 44 years old. Ms. Olney is 65 years old. Neither has any prior criminal record. [ 4 ] The background of this matter is that Mr. Cliffe owned the home at [omitted for publication], on the Wei Wai Kum First Nation Reserve.

He had a mortgage that was secured by the Nation. He defaulted on the mortgage in January 2018. The Nation paid out the mortgage in June 2018. Starting in September 2018 the Nation tried to address the debt with Mr. Cliffe. In February 2019 the Band served Mr. Cliffe with an eviction notice. In the ensuing months both Mr. Cliffe and the Band made proposals to avoid him being evicted. Mr. Cliffe's belief is that he was treated unfairly.

In any event, he did not pay down the debt to the Nation so they proceeded with the eviction. [ 5 ] On June 12 and 13, 2019, the Nation hired professional movers to assist in moving Mr. Cliffe's belonging to the storage containers on the property. [ 6 ] On June 17, 2019, Ms. Olney sent an email to the Band Council expressing her frustration with how they were dealing with her son. In the email she stated that her deceased mother had told her to burn the house down. She stated in the email, "That is exactly what I'll do" and later in the same email, "Burn the fucking place down. No one will have it.

Egg on your face" and then, "You better respond. I have matches ready" and she signed it "Gwen". [ 7 ] On June 20, 2019, Mr. Cliffe and Ms. Olney met with Chief Chris Roberts and the Band Council. The Council confirmed the house would be sold. Ms. Olney is described as being aggressive and stating that she would take action if they took the house from Mr. Cliffe. The Council told Mr. Cliffe and Ms. Olney that as of June 26, 2019, the Nation would take control of the house. [ 8 ] On June 25, 2019, just before 8 a.m., Mr. Cliffe called Chief Roberts, who confirmed the Band was proceeding with their plans.

Shortly after the call Mr. Cliffe went to obtain gasoline in what was believed to be a jerry can. [ 9 ] Unbeknownst to Mr. Cliffe there was an application on his phone that recorded his conversations and phone calls. As a result the Crown has a significant amount of evidence detailing Mr. Cliffe's and Ms. Olney's words and actions just prior to, during and after the fire. [ 10 ] Around 8:13 a.m. on June 25, 2019, Mr. Cliffe phoned a friend and told her he had damaged the house, putting holes in the wall.

He made reference to setting the house on fire and asked the friend if he should let his mother light the match and "take the heat for him". [ 11 ] Around 8:53 a.m. Mr. Cliffe told the same friend she should not come by the house because it would be "going up" in the next 15 minutes. [ 12 ] Mr. Cliffe also spoke to Ms. Olney that morning and she met him at the house at 8:55 a.m. They talked about their plans to light the house on fire. They removed some belongings from the home. They poured gas through the house.

The audio on the phone recorded the sound of liquid being poured. [ 13 ] From the communications recorded it is clear that Mr. Cliffe and Ms. Olney had had previous conversations about burning the home, including the best time of day to set the house on fire. [ 14 ] In addition, on the day of the fire they can be heard recording a video on what is believed to be Ms. Olney's phone in which Mr. Cliffe claims to have tried to stop Ms. Olney from lighting the fire. There is a recording of Mr. Cliffe stating "I tried to stop Gwen Olney from doing what she is about to do.

As Chris Roberts said, we reached the point of no return. I can no longer hold her back and stop the madness anymore. Anything you would like to say?" [ 15 ] Towards the end of the recording inside the house Mr. Cliffe handed Ms. Olney a match and they discussed where the most effective place would be to light the fire. Ms. Olney paused and Mr. Cliffe asked if she was changing her mind. She said she was not changing her mind. That she just wished to make sure the job was complete and there was "no coming back". She said "I'll see you in jail, Chris", which is believed to refer to Chief Chris Roberts.

She lit the match and started the fire. The audio recorded the sound of the fire burning the house. [ 16 ] The obvious conclusions from the audio recordings are that Mr. Cliffe and Ms. Olney planned to set the fire together and to have Ms. Olney take the blame for it. [ 17 ] After lighting the fire both left the area in their respective vehicles. Before leaving, Mr. Cliffe went to the immediate neighbour's houses and knocked on the doors to warn them about the fire. [ 18 ] About 9:21 a.m. nearby residents called 911. The Campbell River Fire Department and RCMP responded. The residence was destroyed.

The firefighters prevented the fire from spreading to the neighbouring houses; however, the heat melted the siding of one of the neighbour's houses. There were multiple propane cylinders on site, which exploded, creating a heightened risk of injury to the police and firefighters. [ 19 ] At 9:24 a.m. Mr. Cliffe phoned Chief Roberts and told him that Ms. Olney had lit the house on fire. That he had tried to stop her and that she had asked him to take a video of her doing it and he did take such a video. [ 20 ] Later on June 25, 2019, Ms. Olney was arrested.

She was interviewed, but did not provide any information about the fire. [ 21 ] On June 27, 2019, Mr. Cliffe was arrested. He told the police he had not started the fire and that immediately afterwards he went

door to door to make sure the neighbours were safe. He spoke at length to the investigators about his concern over the Nation's handling of his eviction. He did not identify who started the fire. [ 22 ] Mr. Cliffe's phone was seized incident to his arrest, which provided access to the recordings that document the offence as I have described. Included in the recordings are numerous communications by Mr. Cliffe after the offence in which he maintains the position that his mother started the fire. He told others that his mother had "snapped and gone into a rage." There is also a recording of Ms. Olney telling Mr.

Cliffe that she is willing to take the fall for him. [ 23 ] To conclude, it is clear that the arson was planned by both Mr. Cliffe and Ms. Olney. They both participated in lighting the fire. They both participated in trying to cover up Mr. Cliffe's involvement in the fire. [ 24 ] It is equally clear on the submissions of the Crown and both Mr. Cliffe and Ms. Olney that their motivation for burning down the house was because they felt aggrieved by the actions of the Nation in evicting Mr. Cliffe. [ 25 ] Both Mr. Cliffe and Ms.

Olney also made it clear through their statements to the court, and it is apparent in some of the reports prepared for sentencing, that they have both been in conflict with the Band Council for several years. They believe the Band Council is corrupt and that because they are vocal about that corruption the Council wants to get rid of them. [ 26 ] I will state at this juncture that whether the Band Council is or was corrupt in some way or whether the Band Council had some ill motive to banish Mr. Cliffe and Ms.

Olney from the reserve is not relevant. [ 27 ] Further, as I have already stated, the eviction proceeded because Mr. Cliffe defaulted on his mortgage in January 2018 and made no effort to pay the debt to the Band up to the date of his eviction almost one and a half years later. [ 28 ] What is relevant is that Mr. Cliffe's and Ms. Olney's motive was to get back at the Band Council and Chief Roberts for a perceived injustice to them. The point is the motive was revenge against members of the Wei Wai Kum First Nation. [ 29 ] Both Mr. Cliffe and even more so Ms.

Olney seemed to remain fixated on the negative actions by the Band Council in past years. Whatever that history may be, it is no justification for setting fire to the house. [ 30 ] Sadly, the house was not insured at the time of the fire, so the Nation lost an estimated $135,000. The Crown seeks restitution in this amount. It seems obvious that Mr. Cliffe and Ms.

Olney are liable to repay loss incurred by the Nation as a result of the fire; however, I have not been provided documentation to support this amount, so it would be inappropriate for me to make a restitution order. [ 31 ] I have had the benefit of several reports prepared on behalf of Mr. Cliffe and Ms. Olney. These include Gladue reports, pre- sentence reports and a psychological assessment for Ms. Olney. Both are aboriginal offenders. Both have no record. Both have clearly suffered the intergenerational effects of colonialism.

The Gladue reports prepared summarize those effects eloquently. [ 32 ] Both also suffered from some mental health issues just prior to the offence. Both have taken significant steps since the offence date to address their mental health. Ms. Olney in particular was hospitalized and in psychiatric care in September of 2019.

Both spoke about their healing process since the offences and both want to repair their connection to their indigenous community. [ 33 ] Their bail terms and orders made by the Band Council have resulted in them being banished from reserve lands, which include not only their previous home neighbourhoods, but also commercial areas such as Ms. Olney's doctor's office and popular shopping centres such as the Walmart and Real Canadian Superstore. [ 34 ] The Crown has not alleged any breaches of bail by either Mr. Cliffe or Ms. Olney. [ 35 ] I have also received letters of support for both Mr. Cliffe and Ms.

Olney and a letter written by Ms. Olney. It is clear that both have some support within and outside the Wei Wai Kum First Nation and both have much to contribute to their community. Both have stated what I accept to be sincere remorse for their actions and their wish to make reparations. [ 36 ] I have also had the benefit of a community impact statement read by Chief Roberts and the victim impact statement read by Ms. Adelle Henderson, who lived in one of the neighbouring houses. Chief Roberts described the trauma to the Wei Wai Kum community as a result of this incomprehensible and terrifying event. Ms.

Henderson described her family's fear on the day of the fire and the lasting psychological impact in particular on her children's feelings of safety. [ 37 ] The sentencing submissions focussed on whether I ought to impose a jail sentence, as sought by the Crown, in the range of 21 to 24 months, or a conditional sentence sought by both Mr. Cliffe and Ms. Olney. [ 38 ] All agree that probation is appropriate. [ 39 ] Mr. Cliffe and Ms. Olney urged me not to continue the banishment from the Campbell River reserve land. On that point I will state right now that I do not intend to continue the banishment.

That is not out of disrespect for those on the Wei Wai Kum First Nation's property and community. On the contrary, I respect that their Nation has the ability to ban members from their reserve and that is better left to them to determine to what extent Mr. Cliffe and Ms. Olney will be permitted back into their community and on their land. [ 40 ] The recent decision of R. v. Laforge , 2020 BCSC 1269 , by Mr. Justice Marchand, is helpful in several aspects of this sentencing. That case involved the sentencing of a Métis man for arson.

He had a reduced moral culpability because of his indigenous background, which included Gladue factors, and his significant mental health issues, which included a schizophrenic illness with symptoms of psychosis. Mr. Laforge received a sentence of 540 days in jail. [ 41 ] Mr. Justice Marchand outlined the principles of sentencing as contained in s. 718 to 718.2 of the Criminal Code , with particular emphasis on s. 718.2 (

e) with respect to indigenous offenders. I adopt all of his commentary in that regard from paragraphs 32 to 43 of the

Laforge case. [ 42 ] He also summarized the application of the principles of sentence in arson cases at paragraphs 47 to 49 as follows. I have deleted reference to the citations in these quotes, but starting with paragraph 47: Arson is a serious offence. The maximum punishment of 14 years imprisonment reflects that fire is erratic, unpredictable and may give rise to unforeseen consequences such as extensive property damage, serious personal injury and/or death. Protection of the public, denunciation and deterrence, both general and specific, are the primary sentencing objectives.

For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest.

Because arson is committed in so many different ways by so many different types of offenders for so many different reasons, the range of sentences is particularly broad. That said, arson offences committed by offenders with mental health issues and no prior record that cause significant property damage, but no loss of life, have resulted in custodial sentences of 2 to 3 years. That is the end of the quote from the case. [ 43 ] Counsel have provided me with several cases on various aspects of sentencing for arson, but I can put it no better than how Mr. Justice Marchand has summarized the law.

Many arson sentencing cases involve people who have experienced psychotic episodes such that their moral blameworthiness is reduced. While both Mr. Cliffe and Ms. Olney were no doubt suffering from some mental health issues, including depression, prior to the offence, neither is in the category of offenders such as Mr. Laforge, who had a serious psychotic illness. [ 44 ] In addition, their offence falls under the latter category identified by Mr. Justice Marchand: revenge.

Thus, while their mental health and the Gladue factors in their backgrounds mitigate their moral culpability, their planning leading up to the fire and clear motive for revenge against the Band Council put their moral culpability higher than, for example, someone like Mr. Laforge. [ 45 ] The conditional sentence regime is set out in s. 742.1 of the Criminal Code . Under this

section the court may order that an accused who is sentenced to a term of imprisonment serve that sentence in the community. There are four conditions that must be present before a conditional sentence can be imposed. [ 46 ] Number one, the offence must not be punishable by a minimum term of imprisonment. All counsel agree that the recent decision of Mr. Justice Schultes in R. v. Chen , 2021 BCSC 697 , is applicable to the provisions before me and therefore I may consider a conditional sentence as an option for sentencing. [ 47 ] Two, the sentence of imprisonment imposed must be less than 2 years.

This sentence will be less than 2 years. [ 48 ] Paragraph three, the court must be satisfied that serving the sentence in the community would not endanger the safety of the community. Given their work on their mental health since the offence I am satisfied that Mr. Cliffe and Ms. Olney do not currently pose a danger to the safety of the Wei Wai Kum First Nation or the community at large. [ 49 ] Finally, number four, the court must be satisfied that serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing.

It is this last prerequisite to a conditional sentence that Mr. Cliffe and Ms. Olney do not meet. I accept that other than holding onto their feelings of being aggrieved by the Band Council they have for the most part attended to their mental health and rehabilitation and are now safe, productive members of society. However, denunciation and deterrence are the primary sentencing principles I must apply. The fire posed a danger to neighbours and firefighters. The trauma to the community and even more so to close neighbours is acute. Mr. Cliffe and Ms.

Olney planned this fire in advance and lit it with a motive of retribution for perceived harm by the Band Council. It would be inconsistent with the case law, which applies the principles of sentencing, to impose anything other than a traditional jail sentence in this case. [ 50 ] There is nothing in the circumstances of either Mr. Cliffe or Ms. Olney that mitigates in favour of one having a sentence lower than the other. They both pleaded guilty and have accepted responsibility for their actions. Neither has any criminal history. They both planned the fire. The both set the fire.

They both tried to cover up the true circumstances of the fire and they shared a motive of revenge. [ 51 ] They have both improved their mental health and life circumstances since the offence and both are remorseful. Both have many skills and have much to contribute to their communities in the future if given the opportunity to do so. As Mr. Cliffe stated to the court at the sentencing, "Good will come to me from this and good will come from me." I accept that this is true for both Mr. Cliffe and Ms. Olney. [ 52 ] The range submitted by the Crown is within that stated by Mr. Justice Marchand in the Laforge case.

It would not be consistent with the principles of denunciation and deterrence, both specific and general, to impose anything less than the lowest figure sought by the Crown, which is 21 months jail. Accordingly, I impose a sentence of 21 months jail on each of you, Mr. Cliffe and Ms. Olney. [ 53 ] Your jail sentences will be followed by 18 months of probation and I am just going to go through the terms of your probation now and then I will ask counsel if they have anything to add as well after I do that. [ 54 ] So, as I read out the terms of probation I read out numbers like 2001.

Those numbers are for the benefit of the clerk, who is sitting in front of me, to find the paragraphs in her computer, because she is drafting the order while I am saying it. [ 55 ] So, the first conditions are compulsory, everybody gets these. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change

of name or address and promptly notify the court or the officer of any change of employment or occupation. [ 56 ] 2104, you must report in person to a probation officer at 128 - 1180 Ironwood Street, Campbell River, British Columbia, telephone 250-286-7522, within two business days after your release from custody unless you have obtained, before your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that you must report as directed by your officer. [ 57 ] 2501, you must attend, participate in and complete any intake assessment, counselling or education program as directed by your probation officer. [ 58 ] Now, I have already stated that I am not going to impose a general no go to the Wei Wai Kum reserve lands, but I will consider, if you have any submissions from the Crown and defence, about whether there should be no go's to the homes of the neighbours or no contact with specific neighbours, for example, Ms. Henderson. [ 59 ] CNSL T.

MORGAN: Your Honour, I can advise that I did receive some correspondence from Chief Roberts and he advised through email, which I shared with my friends, that they -- the Council, and I am quoting, "would appreciate the status quo of the no access condition to stay in place until the work of reintegration begins and elements of remorse are evident." Now, I appreciate Your Honour has made a finding that there is remorse here and I agree with that.

"Community Protection Law is new and we lack enforcement ability and capacity." He further advises he would prefer "a collaborative approach with the Crown" and by the Crown I take it to mean the State, i.e. Her Majesty, "and sentencing conditions that reinforce the community approach. This would be much appreciated." I then asked him about the concern which Your Honour expressed, which was banning Ms.

Olney, for example, from going to her doctor and they -- he wrote back and advised that they are simply seeking the no go to the residential area of the Band lands at this point and then provided a geographic road location for that. So, that is -- those are comments that I would say to Your Honour. I do think at the very least there should be a no go within just to cover that area of the house.

At the very least there should be sort of a no go 50 metres from the very location where the house was burnt down, but if Your Honour wishes to receive the information in terms of the road location I can advise that if you wish. [ 60 ] THE COURT: Sure, you tell me what that is? So, there is -- so what -- [ 61 ] CNSL T. MORGAN: There is sort of five -- [ 62 ] THE COURT: -- the Band is wanting is there is a -- I take it there is an area where there is -- of homes essentially? [ 63 ] CNSL T. MORGAN: That's right. [ 64 ] THE COURT: Okay. [ 65 ] CNSL T.

MORGAN: That's -- that's what I asked Chief Roberts to provide. [ 66 ] THE COURT: Okay, so has he got like a bounded by the -- [ 67 ] CNSL T. MORGAN: It is kind of a pentagon. [ 68 ] THE COURT: -- west and the east of whatever? [ 69 ] CNSL T. MORGAN: It is a pentagon of boundaries as I understand and it is the Wei Wai Kai Road. So, the boundaries, Wei Wai Kai Road, Drake Road, Loughborough Road, Henderson Road and Old Island Highway.

So, my vision of that is it is sort of, as I say, not -- it is a pentagram of sort of -- or sort of as opposed to a square it is -- it is a five boundary and I think that covers, if I understand properly from Chief Roberts, simply the residential area. [ 70 ] THE COURT: Okay. [ 71 ] CNSL T. MORGAN: And to be clear, as I understand from Chief Roberts there is, as I think was expressed in his community impact statement, that there is a path to reintegration for these folks contemplated. So, should Your Honour find favour with that term of probation it is something that Ms. Olney and Mr.

Cliffe can come back to the court and perhaps even with the support of the Council that that can be amended, because I do recognize, for example, I know Ms. Olney has -- and Mr. Cliffe have family members there in that boundary term, but that is the impetus for what Chief Roberts says and I -- it took some time to get that information from him, but he had to go to Council and so that is what I can advise. [ 72 ] THE COURT: Okay, so you have given those boundaries to your friend so that he -- [ 73 ] CNSL T. MORGAN: I haven't given those boundaries. [ 74 ] THE COURT: Oh, okay, no, okay. [ 75 ] CNSL T.

MORGAN: We had some emails going back and forth, Your Honour, very recently and so I thought it best to just if called upon to make a submission in that regard rather -- we weren't in agreement in terms of what should be put before the court through the JCM. [ 76 ] THE COURT: Mm-hmm. [ 77 ] CNSL T. MORGAN: And I think my friends are likely to have something to say about that, but I asked Chief Roberts for refinement of that, because as I understood it last day the concern was to constructively prevent folks from going to Superstore or Walmart where there were some medical professionals that they needed to see.

[ 78 ] THE COURT: Right, okay. So, Mr. Chesterley, do you have any submissions about that? [ 79 ] CNSL E. CHESTERLEY: Well, I am opposed to it, Your Honour, and I note that given Your Honour's sentence in effect the accused will have had essentially three and a half years when they cannot go to that area. It seems to me that that effective management, either because they are in jail or because they were on release terms, they could not go there, has more than met any concern. [ 80 ] THE COURT: Mr. Lagemaat? [ 81 ] CNSL A. LAGEMAAT: Yes, Your Honour, I am not entirely comfortable with the victims.

Well, we don't know who the victims are here, but the parameters my friend has laid out is pretty well the entire residential area of the reserve. The courts are very clear what a victim's role is in a sentencing hearing and that is -- that is in a victim impact statement. They are not to speak to severity or quantum of a sentence and this is just further punitary measures that I don't agree the court should consider. If Mr.

Roberts wants to banish my client from the reserve, which is essentially the residential area of the reserve, I think they should do that through a Band Council and it might not even be constitutional for Your Honour or for a court to banish a person from a Band area from which he is a member of that Band and so it might not even be constitutional and it is something I would like to consider further, but I will say the court is clear on the role of a victim in a sentencing hearing and this is well beyond what the courts have said.

That is my submission, Your Honour. [ 82 ] THE COURT: All right, well, it does seem to me that the Band does have some ability to banish members and they have done that with their orders in the past. I understand there is an issue with enforcement, but they do still have that ability. It does seem to me to go a bit far to have a banishment from the entire residential area, but I do agree that it would be appropriate to at least have something like a 50 metres from the neighbour's homes. So, I have the address of the actual house that was burnt down, which may not exist as an address any more, I do not know.

So, what you propose is 50 metres from what address or from a certain street or something like that? [ 83 ] CNSL T. MORGAN: Your Honour, could I have it -- I don't have anything else to offer. Could I have the municipal address still enumerated if Your Honour is going to go with the 50-metre restriction? [ 84 ] THE COURT: The [omitted for publication]? [ 85 ] CNSL T. MORGAN: That's right, and I am just thinking about 50 metres, Your Honour. That might be -- [ 86 ] THE ACCUSED CLIFFE: Excessive. [ 87 ] CNSL T. MORGAN: That might be a bit -- a bit lengthy.

I wonder if 25 metres might be sufficient. [ 88 ] THE COURT: Twenty-five metres, okay, I will make that order. [ 89 ] So, Madam Clerk, this is 23 -- [ 90 ] THE ACCUSED CLIFFE: Your Honour. [ 91 ] THE COURT: Sorry? [ 92 ] THE ACCUSED CLIFFE: Within 10 metres of this home -- sorry, within 10 metres of this home my support network right here, my brother, which I haven't had contact with since the event, they are within 10 metres.

My father lives within 15. [ 93 ] THE COURT: Well, you are going to have to meet them in other places. [ 94 ] THE ACCUSED CLIFFE: I have done that. [ 95 ] THE COURT: Right. [ 96 ] THE ACCUSED CLIFFE: As best as I can with my family, but putting 25 metres on an area where I have already been punished by the Band from not being able to go there, like my lawyer said, seems unconstitutional. [ 97 ] THE COURT: Okay, well -- [ 98 ] THE ACCUSED CLIFFE: It seems like it's excessive. This is my support network, my family.

These are the people that I have been taken from. [ 99 ] THE COURT: I understand that. [ 100 ] THE ACCUSED CLIFFE: That's my submission. [ 101 ] THE COURT: I understand that, but the neighbours also have a right to feel protected and this incident was very scary for them obviously and they are still -- what I am hearing both through the victim impact statements and community impact statements, that there is still ongoing fear, and it is also clear it seems to me the Band may well banish you from the area anyways through their own orders. I do not know.

I do not have any control over that. [ 102 ] THE ACCUSED CLIFFE: That would be a third punishment. [ 103 ] THE COURT: That is up to them. That is up to them. [ 104 ] THE ACCUSED CLIFFE: That's a third punishment.

[ 105 ] THE COURT: But what I am going to do is I am going to order that you must not go to or be within 25 metres of [omitted for publication] on the Wei Wai Kum First Nation Reserve, in Campbell River, British Columbia. [ 106 ] THE ACCUSED CLIFFE: How many metres, sorry? [ 107 ] THE COURT: Twenty-five. [ 108 ] THE ACCUSED CLIFFE: Okay. [ 109 ] THE COURT: It may be that if the Council is okay with you being within that distance that you can come and apply to vary your probation order. [ 110 ] I should also add to the reporting condition, because I believe this was your submission, is that they would not be required to report after they have completed their counselling? [ 111 ] CNSL T.

MORGAN: That sounds about right, Your Honour, thank you. [ 112 ] THE COURT: Okay, so just adding to the 2104, Madam Clerk. [ 113 ] THE CLERK: Yes. [ 114 ] THE COURT: You will no longer be required to report once you have completed all counselling to the satisfaction of your probation officer. [ 115 ] CNSL T. MORGAN: Your Honour, I am sorry, what was the duration of the order? [ 116 ] THE COURT: Eighteen months. [ 117 ] CNSL T. MORGAN: Thank you. [ 118 ] THE COURT: Okay, and did you want any no contacts or you have not heard from the Band if they want no contacts? [ 119 ] CNSL T.

MORGAN: No, I don't -- I don't want any no contacts, thank you. [ 120 ] THE COURT: Okay. All right, any other terms of probation that any counsel want to address? [ 121 ] CNSL T. MORGAN: No, thank you. [ 122 ] CNSL E. CHESTERLEY: No, Your Honour, thank you. [ 123 ] CNSL A. LAGEMAAT: Nothing further, Your Honour. [ 124 ] THE COURT: Okay, and now next I recall the Crown was not seeking the victim fine surcharge. [ 125 ] CNSL T. MORGAN: No. [ 126 ] THE COURT: Okay, so I will waive any victim fine surcharge on these. [ 127 ] With respect to the DNA order these are secondary designated? [ 128 ] CNSL T.

MORGAN: Yes, they are, Your Honour. [ 129 ] THE COURT: Yes, secondary designated offences. Given that both Mr. Cliffe and Ms. Olney left the scene of the fire and took some steps to cover up the circumstances of the offence it does seem to me that a DNA order is appropriate. So, I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from both of you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. [ 130 ] Now next is there a s. 109 order that goes on this? [ 131 ] CNSL T.

MORGAN: I believe there was, Your Honour. [ 132 ] THE COURT: I -- yes. [ 133 ] CNSL T. MORGAN: I made -- I think I made a submission last day on it. [ 134 ] THE COURT: That is what I thought. [ 135 ] CNSL T. MORGAN: Yeah. [ 136 ] THE COURT: So, okay, and so that would be 10 years. So, this will be on both.

Pursuant to s. 109 of the Criminal Code you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years following your release from prison and any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 137 ] So, that deals with all of the ancillary orders I believe.

[ 138 ] CNSL T.

MORGAN: Yes, thank you. [ 139 ] THE ACCUSED CLIFFE: Can you repeat that one more time, please? [ 140 ] THE COURT: Oh, the firearms? [ 141 ] THE ACCUSED CLIFFE: Yeah, I don't understand what you just said. [ 142 ] THE COURT: Okay, so pursuant to s. 109 of the Criminal Code you are prohibited, meaning you cannot possess, so you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years following your release from prison and any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 143 ] THE ACCUSED CLIFFE: Does that mean I can't go hunting for 10 years? [ 144 ] CNSL T.

MORGAN: That's what it means. [ 145 ] THE COURT: That is what it means. [ 146 ] THE ACCUSED CLIFFE: So, you are taking away some of my culture, too? Okay. [ 147 ] CNSL T. MORGAN: To be fair to the court, Your Honour, you received no submission in that regard. [ 148 ] THE COURT: I did not. [ 149 ] All right, so anything else that anybody wanted to add? [ 150 ] CNSL T. MORGAN: No, thank you, Your Honour. [ 151 ] CNSL E. CHESTERLEY: No, Your Honour, thank you. [ 152 ] THE COURT: Okay, Mr. Lagemaat? [ 153 ] CNSL A. LAGEMAAT: Nothing -- nothing further, Your Honour. [ 154 ] THE COURT: Okay.

Yes, sir? [ 155 ] THE ACCUSED CLIFFE: I would like to add that the Community Protection Law that was presented before you includes the term "punishment". The Band is taking jurisdiction of punishment of their own people and I believe that this is double jeopardy and that you are going against the constitution and submitting me to another punishment on top of what I have already been punished already. Our Band has put that law out. Canada has turned around and accepted that law. They have accepted our land code. They have not challenged that law. They have not provided any protections for our people.

They have put us in a position that we are in right now and that the constitution is letting us down one more time and the insignificance of our Band's jurisdiction before this court weighs heavy on me. I believe that this court in the unceded territory of the Lach-Kwil-Tach people should adhere to the Band's jurisdiction forthright, immediately and be protected by the constitution as part of the restitution for the infringement of colonialism that has happened to our people and I believe that -- I believe that this is wrong. Our Band has written that law.

Your country has accepted that law and you are going against it. [ 156 ] THE COURT: Okay, well, Mr. Cliffe, you are a very well-spoken individual and I do wish you the best and I do believe that you have got a lot to provide to your community as well as you, Ms. Olney, as well. It is clear that you have a lot of skills that you can give back to your community and I do wish you well. So, I will stand down now until the next matter, Madam Clerk. (REASONS CONCLUDED)