R. v. Keating, 2021 MBPC 18

CITATION: R. v. Keating, 2021 MBPC 18 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) N. Steen ) ) for the Crown - and - )) ) Bryce Keating ) M. Glazer ) ) for the Accused ) Reasons for Decision ) Delivered: April 27, 2021 C.A. DEVINE, P.J. INTRODUCTION [1] This is a sentencing decision after trial. I convicted Mr. Keating of a residential break and enter commit assault, an assault,and uttering threats. I stayed the assault conviction pursuant to R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729. [2] Crown and defence counsel agreed that this offence falls into the house break and enter line of cases which the ManitobaCourt of Appeal has held should attract a starting point sentence of two years. The Crown argued that the aggravating features of thecase take it above two years. He is seeking a sentence of five years on the break and enter and a concurrent one year on the utteringthreats offence. [3] The defence argued that in light of Mr.

Keating’s youth – 20 years old when he committed the offence, and 21 years of agenow, his Indigenous background, his limited experience of jail in the past, and parity, his sentence should be the time he has alreadyspent in custody, plus three years of supervised probation. Mr. Keating has been in custody now for the equivalent of almost 16 months,crediting each day he has spent at one and one-half days. Defence argues that this is a lengthy jail sentence and satisfies the need fordenunciation and deterrence.

The additional three years of probation provides further protection to the community by addressing theneed for deterrence and the need for rehabilitation. FACTS OF THE OFFENCE [4] Mr. Keating went into Ms. Myran’s house without her permission or knowledge. He was very angry, pacing, yelling and lookingfor Ms. Myran’s daughter whom he believed had stolen property from him. He was frantic and angry and intended to intimidate Ms.Myran into giving up her daughter when he jumped onto the bed insisting that Raeanne was there and that Ms. Myran should not “fuckwith” him.

And that when he was doing this, yelling and shaking a little like a crazy person, she saw that he had a knife. When shecalled to her teenage daughter to call the police, he fled, with her behind him, and then threatened to burn her house down. The wholeevent lasted only a minute or two. THE PURPOSE OF SENTENCING AND OBJECTIVES OF SENTENCING [5] The fundamental purpose of sentencing as set out in the Criminal Code is to protect society and to contribute to respect for the lawand the maintenance of a just, peaceful and safe society. This is accomplished by imposing just sanctions that have one or moreobjectives.

Those objectives include denouncing unlawful conduct and the harm done to victims, deterring the offender and others fromcommitting offences, separating offenders from society where necessary, rehabilitation, reparations for harm done to victims or thecommunity, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community. [6] Overarching those objectives is the fundamental principle of sentencing, proportionality – the sentence imposed must beproportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence. [7] The Supreme Court of Canada in R. v.

Nasogaluak, 2010 SCC 6, directed sentencing judges to ensure that the fundamentalprinciple of proportionality is not sacrificed at the altar of any of the relevant objectives in any particular case. Justice LeBel explained: . . . whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamentalprinciple of proportionality. . . . (at para. 40)

[8] Justice LeBel went on to explain what proportionality means in the context of sentencing, as follows: For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. . . . however, the degree of censure required to express society's condemnation of the offence is always limited bythe principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectiveson proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than isnecessary. (at para. 42.

Emphasis added.) [9] The Supreme Court also stated clearly that no one sentencing objective trumps the others, and that sentencing judges mustdetermine which objective or objectives should have the greatest weight (at para. 43). [10] The final part of the sentencing framework directs judges on how to take into account other sentencing principles, such asaggravating and mitigating factors and parity: The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriatesentences for similar offences.

The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating ormitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and inthe case law. (at para. 43. Emphasis added.) [11] While recognizing the wide discretion that judges have in sentencing, Justice LeBel explained that it is not unfettered, but rather, issubject to sentencing ranges established by appellate courts as well as by legislated mandatory minimums.

With respect to sentencingranges, the Supreme Court’s direction is that they are guidelines that should never interfere with the imposition of a fit and propersentence: . . . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. Ajudge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, asentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances ofthe offence and the offender, and to the needs of the community in which the offence occurred. (at para. 44) (And see R. v. Lacasse,2015 SCC 64) [12] Most recently, in R. v. Friesen, 2020 SCC 9, Chief Justice Wagner and Justice Rowe trenchantly stated: This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v.

Nasogaluak, 2010SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60).(at para. 37) [13] They continued: The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both in method andoutcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of aparticular case. Different methods may even be required to account properly for relevant systemic and background factors (Ipeelee, atpara. 59).

Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any startingpoint and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para.4).(at para. 38) RELEVANT OBJECTIVES IN THE CASE [14] In this case, the relevant objectives are denunciation, deterrence, rehabilitation, reparations to victims and the community and topromote a sense of responsibility in Mr. Keating and acknowledge the harm done to Ms. Myran, his daughter and the community.

Thebehaviour of a young man bursting into the home of his in-law in a fit of pique and terrorizing her must be denounced. Deterrencesuggests a stiff jail sentence. He is young, impulsive and admits to having a problem with anger. He has a young daughter and needs tobe the best father he can be, thus rehabilitation is important. He must understand that the court takes this offence seriously. THE FUNDAMENTAL AND OVERARCHING PRINCIPLE OF PROPORTIONALITY The Seriousness of the Offence [15] House break enter offences are considered very serious in Canadian law.

Breaking into a person’s home is a violation of theirprivacy and security of the person. This is not a typical home invasion or even break and enter case, however. [16] This was a situation where an angry and upset young man went to his former partner’s mother’s house, where he had been manytimes over the previous four years. He was looking for his former partner to get property back from her – she had slept at his place thenight before and had left while Mr. Keating was still asleep, stealing a significant amount of money and an expensive gold chain. Hewanted his property back. Mr.

Keating stormed into the house angrily, demanding to see Raeanne, and when Ms. Myran told him shewas not home, he jumped onto the bed, yelling, fuming and challenging Ms. Myran’s answer. She noticed then that he was holding aknife. [17] He left as soon as Ms. Myran yelled at him to get out and that she was calling the police. The whole melee lasted a few seconds. Mr. Keating did not go upstairs or into the basement searching any further for Raeanne. He left.

[ 18 ] It is nothing like the home invasion or home invasion robbery cases like R. v. Pakoo , 2004 MBCA 157 and R v McCowan (KJ) , 2010 MBCA 45 . [ 19 ] As I already indicated above, it is more like the house break enter cases where the Manitoba Court of Appeal has stated that the starting point is two years. [ 20 ] In this case, Ms. Myran was made more vulnerable because she was laying down on her bed in the living room with her three-year- old granddaughter. [ 21 ] Mr. Keating did not brandish or point the knife at her. There was no physical assault. But nonetheless the event was upsetting and frightening. Ms.

Myran contacted police. When they arrived, they saw that she was upset, distraught and shaken up. [ 22 ] There was no victim impact statement presented at the sentencing. By the time Ms. Myran completed her evidence, delayed because of the COVID-19 pandemic, she presented as more angry than frightened in her evidence. What we know about the harm caused to Ms. Myran comes entirely from the trial. I already stated that the police stated she was upset. She testified that E., the three- year-old, was crying a little bit when she and her father were yelling at each other. Ms.

Myran testified she called the police because Mr. Keating intruded, had a knife and was on her bed, threatening her. [ 23 ] I infer and accept that the event was upsetting and frightening. But it cannot be overstated nor compared to other cases where complete strangers broke in and seriously assaulted, sexually assaulted or confined the victims over lengthy periods of time. [ 24 ] This offence is serious because Mr. Keating barged into Ms. Myran’s house, knowing he was not welcome there, and further intruded on her privacy and sanctity of her bed, holding a knife and screaming and yelling.

All in the presence of his tiny daughter. The Moral Culpability of the Offender [ 25 ] Mr. Keating was 20 years old when this happened. He admitted to me that he has anger issues. [ 26 ] There was very little planning and premeditation in this case. He woke up, and, seeing that some of his property was missing, threw on shoes without socks, yelled at his mom to drive him over to Raeanne’s mom’s, and burst into the house angry. [ 27 ] He has a lengthy, mostly youth record.

His youth record contains a dated robbery with violence conviction and take motor vehicle without consent from 2013 when he was 12 or 13 years old. His youth record also contains convictions for mischief, possession of a weapon and uttering threats – twice against youth correctional officers; one threat was coupled with an assault, which was spitting at a corrections officer. As youth he was also convicted of possession of drugs three times and several breaches of sentences and release conditions.

His adult record consists of an assault, uttering threats, a mischief and several breaches of release conditions. [ 28 ] The longest jail sentence he has incurred as an adult is 45 days, which was imposed last year for violating his release by removing his ankle monitoring bracelet. [ 29 ] I must also consider Mr. Keating’s circumstances as an Indigenous person. It is intrinsic to the proportionality analysis ( R. v. Ipeelee , 2012 SCC 13 at para. 87 ). Gladue/ Ipeelee Factors [ 30 ] Mr. Keating appears Caucasian. Indeed, Ms. Myran testified that he was Caucasian. Mr. Keating has blond hair and fair skin.

But, in fact, his mother’s father is a member of the Sioux nation and he was displaced from his culture and language when he was adopted out of his community as an infant. The fact that Mr. Keating may be able to “pass” as “white” may have afforded him some reprieve the from racism most Indigenous people experience almost daily, but it does nothing to excise the legacy of colonialism from his family’s past. [ 31 ] Mr. Keating was born and raised in Winnipeg. He lived with his mother and older brother. He did not meet his father until he was 12 years old. He was in CFS care between the ages of 10 and 15.

He was shuffled between jail and 20 to 30 group homes and foster homes during his teen years. He went to several schools as a child and did not do well in school. He dropped out in Grade 8. After that, he was in an out of the Manitoba Youth Centre, where he worked on Grades 9 to 11. He has not graduated from high school. [ 32 ] It would be wrong to disregard Mr. Keating’s Indigenous background or attempt to find a bright-line nexus between his grandfather’s displacement from his culture and Mr. Keating’s offending behaviour.

The sequelae of generational family and cultural displacement due to racist and colonial government policies are well known in Canadian law and perhaps especially in the Manitoba Provincial Court which bears witness to this tragedy on a daily basis. [ 33 ] I find that Mr. Keating’s moral culpability in committing this offence was attenuated due to his age, his impulsivity and his Indigenous background. [ 34 ] So, these offences must be seen in their particular family and familial context.

It must be remembered that the offences lasted only a matter of seconds or a minute or two and that the impacts are apparently fairly minimal The offences were committed by a very young, impulsive man whose short life demonstrates significant impacts of being an Indigenous person. The particular circumstances of this offence and offender already take his sentence below two years. [ 35 ] I turn to consider other principles that may serve to increase or decrease the sentence. OTHER RELEVANT SENTENCING PRINCIPLES, s. 718.2 Aggravating and Mitigating Factors (s. 718.2(a))

[ 36 ] There is a statutorily aggravating circumstance in this case.

Section 348.1 provides that if a person is convicted of break and enter of a dwelling house, the sentencing court must consider as an aggravating circumstance if the dwelling house is occupied and that the person knew or was reckless as to that, and that they used violence or threats of violence. [ 37 ] The presence of Mr. Keating’s three-year old daughter is also aggravating. I do not know if she saw the knife. I did not make a finding that she did.

But the child was present when her grandmother and father, both beloved people in her life, were angry and yelling and screaming at each other. [ 38 ] There are also mitigating factors. Mr. Keating has a very supportive grandmother who wrote a letter filed in this sentencing. It outlines many positive aspects of Mr. Keating’s youth, including saving the life of teenage girl who had been stabbed in the neck at his house. He was 15 or 16 years old at the time. [ 39 ] He once built a sweat lodge for him and his grandmother and used it. He was a good athlete, playing one season for the Winnipeg Nomads.

He is a good artist. [ 40 ] Despite the presence of his young daughter during this offence, all other reports, whether by his grandmother and Ms. Myran and his mother who testified, as well as his own testimony, is that he loves little E. very much and is devoted to her and involved in her life. This is despite the fact that she is not his biological child. Parity (s. 718.2(b)) [ 41 ]

Section 718.2(

b) states that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [ 42 ] Both counsel filed cases. The cases filed by the Crown involved worse offences committed by worse offenders. Only one of the cases was from Manitoba. [ 43 ] R. v. Greaves 2005 BCCA 401 involved two separate serious home invasion robberies. The victims were terrorized with a gun in one case and a knife in the other, assaulted, tied up, and threatened with death while the offender went through their homes, stealing their property.

One home invasion lasted two and one-half hours and the other lasted one hour. The offences were premeditated by a predatory offender. The offender was 37 years old with a serious record, including four previous robbery convictions, one of which resulted in an eight-year sentence, and he was on bail at the time of these home invasions. [ 44 ] He received a sentence of eight years for two serious and classic home invasions, both of which were far more serious than the offences committed by Mr. Keating.

This case is not comparable in terms of the extremely serious offences, nor in terms of the offender, who was almost twice as old as Mr. Keating, with an extremely serious and violent record. [ 45 ] In R. v. Mullin 2019 NBQB 21 , the offender was sentenced to three years, which is two years less than what the Crown is seeking here. He kicked in the victim’s door. Like Ms. Myran, the victim in that case was laying down, but was also wearing only her underwear, which made her more vulnerable. Like Mr. Keating, the offender was going to retrieve property he believed belonged to him. Like Ms.

Myran, the victim had told the offender he was not welcome in her home. The similarities end there. The offender knocked the victim onto the floor, poked at her breasts and ribs with a baseball bat, then choked her with the bat. He let her go, but then moved from room to room in her house, tapping the baseball bat and rummaging through drawers.

A victim impact statement was filed in which the victim detailed how she had lost her nerve since then, had lost her job because she feared walking to work, experienced panic attacks and anxiety for which she took medication, and was in counselling treatment for the trauma. She rarely left her home after the offence. The accused was 45 years old with a high school education, highly intelligent, but with a serious alcohol abuse problem and some mental health history.

His criminal record did not involve any violent offences and his longest jail sentence previously was 15 days. [ 46 ] Again, the offence was far more serious, in terms of the violence inflicted on the victim and its impact on her. The moral culpability of the offender was much higher. It is not comparable, and yet, the sentence was three years, two years less than what the Crown is seeking in Mr. Keating’s case. [ 47 ] In the only Manitoba case filed by the Crown, R. v.

Fehr , 2013 MBQB 274 , the 38-year-old offender forced his way into his ex- girlfriend’s trailer and used a knife to confront her and her new boyfriend who were in their underwear. He restricted their movements in the trailer, at times with the knife in his hand. He had a serious mental health record, drank excessively and had a criminal record of three arsons, two assaults, forcible entry and unlawfully being in a dwelling place. Victim impact statements were provided to the court. The victims were profoundly impacted, reporting ongoing feelings of fear and anxiety affecting their health, work and daily living.

At the time of the offence, the offender was on a recognizance to have no contact with his ex girlfriend. He had also committed an arson in the same time frame; he was serving the sentence for the arson when being sentenced on the housebreak offence. He told his probation officer he did not need alcohol rehabilitation; he was not motivated to change. The offender received a sentence of six years for the break and enter commit indictable offence, unlawful confinement of two victims, assault on one victim and assault with weapon on the other.

It appears the sentencing judge ascribed five years to the break and enter. Again, the offence is more serious, given the profound impact on the victims, which is absent in Mr. Keating’s case. The offender is not similar: he was a mature offender who was resistant to rehabilitation. [ 48 ] The case of R. v. Moore , [1988] B.C.W.L.D. 3597 (BCCA) is very dated. The 21-year-old accused received a sentence of four years. The victims were terrified. The offender was on parole at the time. There are no other facts. It is not a comparable case. [ 49 ] The two Alberta Court of Appeal cases of R. v.

Pyykonen , 1999 ABCA 78 and R. v. Gladue , 2011 ABCA 378 involved extremely violent scenarios. Pyykonen involved a vigilante break and enter involving two co-accuseds who smashed the sleeping victim on the head with a gun, breaking his cheek, and threatened to kill him and his girlfriend and daughter if he called police. He was sentenced to six and one-half years. In Gladue , the offender broke into the victim’s home where she was asleep with her three-year-old granddaughter and then threatened her with a stick, leading her outside where he sexually assaulted her. He received a sentence of seven years. Although

the offender was only 23 years of age, he had a lengthy record including 18 previous break and enter convictions and he was a high riskfor sexual recidivism. Neither the offenders nor the offences are comparable. [50] Finally, in R. v. Serre, 2009 ONCA 108, the victim was awakened by a complete stranger holding a nightstick and asking for aman who she did not know. When she looked outside, she saw a waiting vehicle with two others in it. Three hours later the same peoplecame back to her house banging on her doors.

The accused who was described as being in his late 40’s had a criminal record stretchingback four decades and was there to collect a drug debt. He was sentenced to four years. [51] I agree with the defence who pointed out that the Crown is seeking the same sentence as courts have reserved for much moreserious offenders and offences, such as Pakoo, a domestic break and enter frequently cited in this jurisdiction. In that case, the accusedterrorized his former spouse and her boyfriend, including serious physical violence, firing a gun and several children were present. Hereceived a five-year sentence.

It should be observed that the accused did not have a record and there were many mitigating factors. [52] The cases filed by the Crown were not helpful, except to show that the five-year sentence being sought by the Crown is for casesmore like the ones he filed and not for Mr. Keating’s case. [53The cases filed by the defence were mostly Manitoba cases. [54] In R. v. Beardy, 2017 MBPC 32, the 20-year-old intoxicated offender broke into his former partner’s home while she was sleepingwith her new boyfriend. He was on a release condition not to attend her home at the time.

He threatened to kill the boyfriend with a boxcutter; he punched him in the face several times breaking his nose, and he punched his former girlfriend several times in the face andhead. She sustained bruising and swelling injuries. There was a child present. The offence was premeditated. Mitigating factors werethat the accused pleaded guilty, there were significant Gladue factors, he was remorseful and of previous good character, and lacked of aserious prior record. He had also demonstrated efforts at rehabilitation after his arrest.

The sentencing judge relied on the two-yearstarting point for housebreak and enter, and imposed a cumulative sentence of 20 months: 17 months on the break and enter, 12 monthsconcurrent on the assault and three months consecutive on a breach. The Manitoba Court of Appeal upheld the sentence, JusticeMainella noting: At the end of the day, while another judge may not have, it was open to the judge here to place significant weight on the accused’syouth, lack of a serious prior record, sincere remorse, demonstrated efforts at rehabilitation after his arrest, meaningful Gladue factors(R. v.

Gladue, (SCC), [1999] 1 SCR 688) and the fact that this incident, in 2015, was the culmination of a difficultperiod in the accused’s life after being evacuated to Winnipeg in 2011 from his community due to flooding. (at para. 4) [55] This case, in terms of the offender and the circumstances of the offence, are closer to Mr. Keating’s case. Mr. Keating does have asignificant record. He has not yet demonstrated significant efforts at rehabilitation, and he has not demonstrated sincere remorse. On theother hand, there was no premeditation and there were no physical injuries committed on Ms. Myran, whereas Mr.

Beardy injured twovictims, one of them quite seriously. [41] In R. v. Blacksmith, 2018 MBCA 81, the victims were not home during the house break and enter. The Court of Appeal substituteda 15-month sentence for a probationary sentence imposed by the sentencing judge. This case is of limited value, given that no one washome at the time. [42] The case of R. v. Vanvlymen, [2000] OJ No 5226 (OCJ) is dated. The accused broke into a house and brandished a knife at theoccupants. He had a long record of similar offences and committed break and enters to support his drug addiction. He was trying toleave the house.

The Crown sought a sentence of eight years. He had already spent six months in custody. The judge imposed a furtheryear in custody, for a total of 18 months, emphasizing the need for rehabilitation. [43] Finally, in R.v. Torcaso and Maione, 2017 ONSC 4004 (OSCJ), the youthful co-accused Torcaso broke down the front door of thevictim’s house and assaulted him, resulting in injuries, because he was jealous that his girlfriend went to the victim’s house after a nightof drinking at the bar. The co-accused Maione backed another victim into the kitchen with a knife in his hand.

They were found guiltyof break and enter and assaults and assault with weapon. The Crown sought low jail sentences: six to nine months for Torcaso and fourto six months for Maione. The court imposed six months for Torcaso because he injured the victim. Maione was sentenced to twomonths in jail. Both were also given probation. They had no or very limited records and were otherwise of good character. This casesits well outside the range for residential break and enters in Manitoba, and the offenders are not similar to Mr.

Keating. [44] Keeping the overarching principle of proportionality in mind, now bringing in consideration of the aggravating and mitigatingfactors and applying the principle of parity, a sentence of approximately 18 months is suggested. [45] The last principles I must consider are restraint and restorative sentencing. RESTRAINT AND RESTORATIVE SENTENCING (s. 718.2(

d) and (e)) [56] Sections 7.18.2(

d) and (

e) provide that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. (

e) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victimsor to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [57] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, Justices Cory and Iacobucci stated: The concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as differentissues and different conceptions of sentencing are addressed in their appropriate context.

In general terms, restorative justice may bedescribed as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony

which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender.

The focus is on the human beings closely affected by the crime. (at para. 71) [ 58 ] I take judicial notice of the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, higher teenage birth rates and of course higher levels of incarceration for Indigenous peoples. [ 59 ] The long-term consequences for incarcerating a significant proportion of the Indigenous population has the same effect as residential schools in the previous generation. [ 60 ] It is well known that imprisonment has not achieved the desired effect of reducing crime, recidivism and deterrence, as the Supreme Court documented, citing several studies and commissions in Gladue at paraaragrphs 54–57, which Justices Cory and Iacobucci summarized at paragraph 57 by stating: Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. [ 61 ] It is recognized that the sentencing process in the criminal context is not a panacea.

Sentencing alone will not get to the roots of the problem of over-incarceration of Indigenous people. In Gladue , Justices Cory and Iacobucci were mindful of that, recognizing that poverty, substance abuse, lack of education and lack of employment opportunities lead to incarceration.

However, they also said there is something that sentencing judges can do, at para. 65: Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. [ 62 ] In this case, there is no disagreement that a jail sentence is fit and appropriate, but because of the familial circumstances in which the offence occurred, the offender’s age and his Indigeneity, restraint and restorative principles must be given some expression, insofar as that is possible. [ 63 ] I take into consideration in considering restraint, the effect that being incarcerated during the COVID-19 pandemic has had on Mr.

Keating and all inmates. He has been at Milner Ridge Correctional Centre. He shares a cell with one other inmate. During the Code- Red period of the pandemic, inmates were locked in their cells for 23 hours each day. No visitors have been allowed since April 2020. Canteen has been restricted from twice per week to once per week. Daily trips to the gym were eliminated on Hallowe’en, 2020. Multiple inmates contracted COVID-19 since Mr. Keating has been in the jail. [ 64 ] Restorative principles in this case serve to moderate Mr.

Keating’s custodial sentence and include restorative and rehabilitative measures in a probation order. He has a desire to address his anger and impulsivity. And he is very young. As the Manitoba Court of Appeal noted very recently in R. v. Antczak , 2021 MBCA 39 at paragraph 10 , “young people have the greatest potential of changing their ways and being rehabilitated (see R v Okemow , 2017 MBCA 59 at para. 122 ). [ 65 ] Mr. Keating’s prospects for rehabilitation are good because of his age and his insight and willingness to address anger and impulsivity.

He has had experience with the BUILD program in the past and wishes to reconnect with that program. His long-term plan is to become a carpenter. He has some work experience in siding, fencing, stucco and painting. He wants to be a good father. [ 66 ] He has devoted family. He has some connection with spirituality and ceremony, having done sweats in the past. [ 67 ] Further healing will be required and necessary to restore the individual and the community. SENTENCE [ 68 ] The custodial sentence on the break and enter will be one of 18 months incarceration.

The sentence for uttering threats offence will be six months concurrent. Subtracted from the 18 months will be the time Mr. Keating has been in custody, which I deem to be 16 months. Therefore, his remaining custodial sentence will be two months. [68] That will be followed by three years of probation. The first two years will be supervised.

In addition to the mandatory conditions, the probation order will have the following conditions: • Report to Probation Services immediately upon your release and thereafter as required by your probation officer; • Take any rehabilitative programs as required by your probation officer, including anger management and parenting; • Receive counselling and programming to address impulsivity and relationships; • Take any upgrading, training and job readiness programming as required by your probation officer; • Do 50 hours of community service work in the first year of your probation order and 50 hours of community service work in the second year; • Write a letter of apology to Charlotte Myran under the supervision of your probation officer; • Possess no weapons; • Do not have any contact with Charlotte Myran except through a third party for the sole purpose of arranging access to your child

E.; and • Do not go to the home of Charlotte Myran. [ 69 ] The following ancillary orders are also made: •

Section 109 firearms prohibition for a period of 10 years. • Because housebreak and enter and assault is a primary designated offence, provide a sample of your DNA within 60 days of your release. • The victim surcharge is waived. “Original signed by:” C.A. DEVINE, P.J.