R. v. Billy Date:, 2012 BCPC 372

Citation: R. v. Billy Date: 20120416 2012 BCPC 0372 File No: 56452-3-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLINT AARON JEREMY BILLY EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Verrier Counsel for the Defendant: M. LeHouillier Place of Hearing: North Vancouver , B.C. Date of Judgment: April 16, 2012

[ 1 ] THE COURT: Well, Mr. Billy, you are a very intelligent young man. It is apparent even just from hearing you speak today and also what you told the -- I think her name is Halie -- [ 2 ] UNIDENTIFIED VOICE: Bruce. [ 3 ] THE COURT: -- Bruce wrote what I can only describe as an absolutely excellent report on your behalf and dealing with all of the considerations that I should be taking into account for someone with your background and circumstances. Do you even know what Gladue was about?

Do you know why -- [ 4 ] THE ACCUSED: Research into Native backgrounds -- [ 5 ] THE COURT: Okay -- [ 6 ] THE ACCUSED: -- or was it -- [ 7 ] THE COURT: -- but do you know why that is so significant?

Have you ever learned about the history of the treatment of the First Nations people in Canada? [ 8 ] THE ACCUSED: I know a little bit, like, I was told about like alcohol is like so bad for us because it has not -- it has not been in our bloodline as long as people that, you know, brought it. [ 9 ] THE COURT: Well, unfortunately, that is a myth. [ 10 ] THE ACCUSED: Right. [ 11 ] THE COURT: Your bodies react exactly the same way to alcohol -- [ 12 ] THE ACCUSED: Oh. [ 13 ] THE COURT: -- as anyone -- [ 14 ] THE ACCUSED: Well, then -- [ 15 ] THE COURT: -- else's does. [ 16 ] THE ACCUSED: -- I do not know that much, then. [ 17 ] THE COURT: There are some people that have an intolerance -- [ 18 ] THE ACCUSED: Yes. [ 19 ] THE COURT: -- in the sense their livers cannot break down alcohol as well and they turn red. [ 20 ] THE ACCUSED: Yes. [ 21 ] THE COURT: Okay, but is that as far as anyone has ever taken you? [ 22 ] THE ACCUSED: As far as -- yes. [ 23 ] THE COURT: Okay.

Well, let me give you just a little thumbnail sketch and you need to learn about all of this. About, oh, 300 years ago or so, there began to be contact between First Nations people on the West Coast of Canada and all around the world, really, with Europeans. First the Portuguese, the Spanish, et cetera, and the first thing they did was reduce the population significantly. [ 24 ] They say - this is estimated - there might have been as many as 100,000 First Nations people on the Coast alone, the Coast Salish being a huge number of those. That population was reduced to mere thousands in only about 150 years.

Now, the Europeans also managed to wipe out the Mayans almost entirely as well as the Incas and various other populations that existed in North America and South America. [ 25 ] There was an intentional distribution of blankets infected with small pox. [ 26 ] THE ACCUSED: Yes, I heard about that. [ 27 ] THE COURT: Then you were put on reserves. Your ability to pursue your own way of life on your own lands was taken away from you. You were given alcohol which is not something that was used in your own culture.

It was a tool that has been used very effectively to ensure that you cannot fight back and cannot stand up for your rights. They say Canada is a treaty nation, but I guess that is in dispute if you cannot enforce a treaty. Then Canada adopted the assimilation policy. Do you know what that is? [ 28 ] THE ACCUSED: No. [ 29 ] THE COURT: They were not going to be any Indians left in Canada when they were finished. They took almost every child away. In some communities every child for 100 years was taken out of those First Nations communities.

No children between six and 16 at all in any communities. [ 30 ] THE ACCUSED: That was for the reason is, I think --

[ 31 ] THE COURT: They were going to take the Indian out of the Indian. They sent them to residential schools where many were abused horribly.

When we look back, it is abusive to even think about saying to someone, "Your culture is no good; your language is no good, that has to change; you are going to become just like us, you cannot be who you are; you cannot practice your culture; you cannot speak your language." People were beaten in residential schools simply for speaking their own language when they did not speak English and so it was their only means of communication. [ 32 ] THE ACCUSED: Yes. [ 33 ] THE COURT: We would consider that now to be terrible abuse. [ 34 ] Well, we managed to almost completely dismantle your cultures and your families.

In the 1970s and 1980s - and the residential school system was still working into the 1970s - people began to think differently all over the world about how we treat other cultures and began to recognize, as we become a global village, that we have to deal with other people in the world differently and be accepting and tolerant of them.

Canada itself has had to look at the shameful manner in which we treated our First Nations people. [ 35 ] One of the things that came out of that was a Royal Commission on Aboriginal Affairs that looked into all of what I have just talked about and the effect it has had on your people and you, unfortunately, are a living example of the impact it has had. Even though your mom did not go to residential school, even though these things did not immediately affect you, they have had an intergenerational effect.

I mean look at what your own family has gone through. [ 36 ] Now, on the positive side, Coast Salish is still spoken. It is a living language. Most of the languages were preserved. Most of the practices were preserved. People hid regalia up and down the Coast. [ 37 ] They continued to potlatch and have other ceremonies even though they were outlawed and illegal. Your people stubbornly held on which is an unbelievable thing because, let me tell you, there was a lot of effort put into trying to wipe you out completely and yet your culture survived and it is growing and there is a resurgence of pride.

People your age can speak the language, I have heard it. They know how to food-gather, they know their dances, they know their cultures, they know their legends. They are involved and those who are involved find it very fulfilling and it helps them heal. That is what your aunt is talking about. [ 38 ] So you need to reject alcohol for what it is. It is a tool, a weapon, and it is not part of who you are. The reason there is such high alcoholism among First Nations people has nothing to do with who you are and everything to do with your circumstances.

I am just going to refer to a recent Supreme Court of Canada case, from March 23rd, in which they reiterate, they say again, what has happened. [ 39 ] So this is from Ipeelee , a decision of the Supreme Court of Canada, the highest court in Canada, 2012 SCC 13 , where at paragraph 60 they say: Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society ...

To be clear, courts must take judicial notice of such matters as 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, and of course higher levels of incarceration for Aboriginal peoples. [ 40 ] So you need to find out how you ended up in the circumstance you are in and through that you will probably find out that you have choices and that you can get on with your life.

Maybe someday you will be standing there as a lawyer or will be out in the community as a doctor taking care of your people because everything I am reading about you says that you could do that if you chose to do it. There are resources out there to help you.

You have experienced terrible trauma that you need to work through and you have taken the very first step and the most important step which is saying, "I've experienced terrible trauma and I need to deal with it," because until you accept that terrible things have happened to you, you cannot possibly work on them. [ 41 ] So you have taken a very important first step just by having this report prepared. So I encourage you to learn about all of that because it will help you. Learn about your culture, get back into it.

At one point you were paddling -- [ 42 ] THE ACCUSED: Yes. [ 43 ] THE COURT: Well, that is one thing you can do, but there are a lot of other things that you can do to help yourself and help your people. [ 44 ] So in these circumstances, I have to take into account all of what I have just talked about and what is referred to again in the latest case out of the Supreme Court of Canada. I have a very, very thorough report.

I am not going to say a lot of what is in that report on the record because it is personal to you, but we all know what we are talking about when I say you have gone through terrible trauma in your life. [ 45 ] You have now spent a year in custody.

According to the Criminal Code , I cannot give you more than one-for-one time any longer, but I am certainly going to take into account that, in that year, you have spent time in segregation and some of that time you have done by choice, other time there simply because that is the way things work out in overcrowded prisons where there are no resources and where people who are spending time in our institutions are not properly protected. [ 46 ] So I am taking into account that your time in custody has doubtless had a punitive effect and, hopefully, also a rehabilitative effect in the sense that you do not want to go back there.

You have been sober and clean, for a year. You have had lots of time to think and, judging by the report, I can infer from the report that you are remorseful and take responsibility and are ready to move on. [ 47 ] There are two people in court who are very important to you and who spoke and to whom you have to turn to ask for help when you need it. You have probably not done that very much. I expect they want you to come and ask for their help and so you should. That is what family is.

[ 48 ] I am going to give you credit for one year in custody and there will be a two-day jail sentence and that is only so that you will be released tomorrow from the correctional institution directly into the care of a staff member from VisionQuest. [ 49 ] THE ACCUSED: Thank you. [ 50 ] THE COURT: Well -- [ 51 ] THE ACCUSED: Thank you. [ 52 ] THE COURT: -- do not mess up. We will talk about that in a little bit, as well. There is also going to be probation. I am going to make it for the longest period I can.

It is going to be for three years, and I am hoping that you will engage in all kinds of restorative programs over that period of time. I think you should learn to speak Coast Salish, at least make an effort. Do you speak anything at all? [ 53 ] THE ACCUSED: Thaakwa [phonetic], otheum [phonetic] -- no, otheum, no -- [ 54 ] THE COURT: Yes, oseeum [phonetic]. Okay, well, there is an active language program down at the Squamish Nation.

So you do not have to go to Squamish, either, to start to learn your own language -- [ 55 ] THE ACCUSED: Yes. [ 56 ] THE COURT: -- but that is just one of the many things that you are going to be able to do. [ 57 ] You are going to be placed on probation for a period of three years.

The terms will be that you keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 58 ] You will report by telephone by no later than 4:00 p.m., April 17, 2012, by telephone to a probation officer at 100, 233 West 1st Street in North Vancouver and report thereafter as and when and where directed. [ 59 ] Commencing April 17, you are to reside at the VisionQuest Recovery Society in Surrey, British Columbia. [ 60 ] You are to be released from custody on April 17th only to a staff member of the VisionQuest Recovery Society. [ 61 ] When residing at the VisionQuest Recovery Society, you will obey all the rules and regulations including any curfew. [ 62 ] You will reside in any other residential treatment or recovery program as approved of or directed by your probation officer. [ 63 ] When residing in any other recovery or treatment program, you will obey all the rules and regulations including any curfew. [ 64 ] When not residing in residential treatment or recovery, you will abide by a curfew of 10:00 p.m. to 6:00 a.m., Sundays through Thursdays and 11:00 p.m. to 6:00 a.m., Fridays and Saturdays.

Your probation officer may give you written permission to be outside your residence during your curfew hours for the purpose of attending any programming, counselling, or cultural events. [ 65 ] You will seek and maintain employment as directed by your probation officer. [ 66 ] THE ACCUSED: Can I start working right away? [ 67 ] THE COURT: Well, that will depend -- I do not think VisionQuest will let you out for 30 days. I think they have a minimum of 30.

Yes, well, it says that for 90 days you are not to leave your residence except for medical emergency or attending activities approved of by them and you have to be with a member of VisionQuest.

So it is going to be 90 days, it looks like, before you can work. [ 68 ] THE ACCUSED: Okay. [ 69 ] THE COURT: That is the least of your concerns at this point in time. [ 70 ] You will also attend for, accept, and complete any educational programming or job training as may be directed by your probation officer. [ 71 ] You will attend for, accept, and complete any counselling to include but not limited to emotional trauma counselling or substance abuse counselling. [ 72 ] You will perform 50 hours of community work service for the benefit of the Squamish Nation as directed by your probation officer and complete same to the satisfaction of your probation officer within the first nine months of your period of probation. [ 73 ] And did I include that he will reside as directed by his probation officer? [ 74 ] THE CLERK: No. [ 75 ] MS.

VERRIER: No, I think that -- [ 76 ] THE COURT: Okay. [ 77 ] MS. VERRIER: -- I wondered about that, Your Honour. [ 78 ] THE COURT: All right. [ 79 ] So you will reside as directed by your probation officer and not change that address without their prior written permission.

[ 80 ] You are to have no contact directly or indirectly with Chankour Singh Dhaliwal save and except to provide him with a letter of apology through your probation officer to be completed to the satisfaction of your probation officer within the first 30 days of your period of probation. [ 81 ] You are not to be found in possession of any knives except for the immediate preparation or consumption of food. [ 82 ] You are not to be in possession of any weapons as defined by the Criminal Code of Canada . [ 83 ] You are not to be in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licences, and registration certificates.

Do you have any such items to surrender? I take it that is no? [ 84 ] Okay, and do you want a no-go to the -- [ 85 ] MS. VERRIER: Yes, yes. [ 86 ] THE COURT: -- Esso 7-Eleven. [ 87 ] MS. VERRIER: Yes, please, Your Honour, and that is at -- that is located at 38471 Cleveland Avenue in Squamish. [ 88 ] THE COURT: 38741? [ 89 ] MS. VERRIER: 38471, sorry -- [ 90 ] THE COURT: 471. [ 91 ] MS. VERRIER: -- in Squamish. [ 92 ] THE COURT: Okay. [ 93 ] So you are not to attend at the 7-Eleven Esso located at 38471 Cleveland Avenue in Squamish, British Columbia. [ 94 ] MS.

VERRIER: And I do not know if Your Honour was considering a no-contact with his co-accused, Mr. Noel. [ 95 ] THE COURT: Oh, yes. You will have no contact direct or indirect with Jessie Diamond Noel. [ 96 ] MS. VERRIER: And was that firearm prohibition, Your Honour, a s. 109 mandatory lifetime -- [ 97 ] THE COURT: No, I will repeat that -- [ 98 ] MS. VERRIER: -- or is that a separation -- okay. [ 99 ] THE COURT: -- and the DNA later. [ 100 ] MS.

VERRIER: I just wonder, also, Your Honour, and looking at the document my friend provided with respect to the VisionQuest, and they seem to have conditions that they need to have set out. I know they were referring to a CSO, but of course, we are dealing with the same sort of thing on a probation. They seem to have conditions that have to be part of the order. Is that my friend's understanding? [ 101 ] THE COURT: For which? [ 102 ] MS.

VERRIER: Well, I am looking specifically, for instance, Your Honour, at, "You must not change your residence without the prior approval of the court." [ 103 ] THE COURT: I have got that one in there. [ 104 ] MS. VERRIER: Yes, Your Honour has him residing as directed -- [ 105 ] THE COURT: Right. [ 106 ] MS. VERRIER: -- residing as directed, but not -- [ 107 ] THE COURT: Got the curfew. [ 108 ] MS. VERRIER: -- having to -- not having to seek the court's approval to change his address which I think might be -- [ 109 ] THE COURT: I left that to the probation officer. [ 110 ] MS. VERRIER: All right, all right.

I just wondered -- no, and that is my question, Your Honour, whether or not VisionQuest requires these conditions to be exactly as they have set them out or just a general -- [ 111 ] MR. LEHOUILLIER: No, I think -- [ 112 ] MS. VERRIER: No. [ 113 ] MR. LEHOUILLIER: -- these would be recommended --

[ 114 ] MS. VERRIER: Sort of -- okay. [ 115 ] MR. LEHOUILLIER: -- conditions and I think Your Honour has probably crafted them a little more carefully than -- [ 116 ] THE COURT: Mm-hmm. [ 117 ] MR. LEHOUILLIER: -- the author of this letter. [ 118 ] MS. VERRIER: Just wondering -- [ 119 ] THE COURT: Okay, the Circle of Eagles, though, is a reintegration. The healing village is a -- or, sorry, it is something that would follow a sentence.

I have said that he is to reside in any treatment or recovery centre so I assume if something at Tsow-Tun Le Lum comes up or one of the other that he will -- and that is what you should do.

You should try and get into one of the First Nations -- specific First Nations resources that are available for you. [ 120 ] THE ACCUSED: I actually tried to get into Tsow-Tun Le Lum. [ 121 ] THE COURT: Tsow-Tun Le Lum. [ 122 ] THE ACCUSED: -- when I got out of the federal system -- [ 123 ] THE COURT: That is correct. [ 124 ] THE ACCUSED: -- and it did not work out when I was in jail. [ 125 ] THE COURT: Okay, well, you know what, there is Ms. Baker here. There is Heather Andrews of the Squamish Nation Drug and Alcohol.

She assists people in getting into -- [ 126 ] THE ACCUSED: I know her, yes. [ 127 ] THE COURT: -- that program. [ 128 ] THE ACCUSED: Yes. [ 129 ] THE COURT: So you can contact her. Okay, well, I think those are all of the terms I would want to see on his probation.

The other thing is that you are going to come back before me for a review. [ 130 ] THE ACCUSED: For review? [ 131 ] THE COURT: Yes, you and I are going to get to know each other, I think, very well over the next three years -- [ 132 ] THE ACCUSED: Okay. [ 133 ] THE COURT: -- because I am going to keep an eye on you and, hopefully, over time, you can come back and nothing would make any of us happier than to come back and we can eliminate some of the more strict terms on your probation and maybe even terminate it prior to three years because you have got a grip on where you are going.

Okay. [ 134 ] Now, anything else? [ 135 ] MR. LEHOUILLIER: I have no submissions -- [ 136 ] THE COURT: Okay, so -- [ 137 ] MR. LEHOUILLIER: -- on the 109 and the DNA, that is fine. [ 138 ] THE COURT: All right. So you will be providing a sample of your DNA. I think you have probably already done that. [ 139 ] THE ACCUSED: What is the DNA for? [ 140 ] THE COURT: The DNA goes to the databank. You have already -- you have actually already provided on your -- [ 141 ] THE ACCUSED: Oh, yes. [ 142 ] THE COURT: -- last two convictions, but it just goes to the DNA databank in Ottawa.

It is used solely for the purpose of either eliminating you as a suspect or determining someone who has committed a crime through the use of DNA, and that is it. That is all it is going to be used for. [ 143 ] Pursuant to s. 109 of the Criminal Code , I am imposing a firearms prohibition for life. I have already repeated the terms of that and you have indicated that you have nothing -- on the probation, and that you have nothing to surrender. [ 144 ] MR. LEHOUILLIER: The victim fine surcharge can be waived, I suppose? [ 145 ] THE COURT: Yes, I will waive the victim fine surcharge. [DISCUSSION RE EXHIBITS]

[ 146 ] MS. VERRIER: And, Your Honour, I direct a stay of proceedings with respect to Count 1 as it relates to Mr. Billy. [ 147 ] THE COURT: Now, Mr. Billy, one very important thing. I have not actually even put a "Don't Drink" term on your order and I have done so intentionally. [ 148 ] THE ACCUSED: You did not put a drink -- [ 149 ] THE COURT: You know why? Because that is up to you. I am not going to order you not to drink. You have to decide not to drink. [ 150 ] THE ACCUSED: It is easy. [ 151 ] THE COURT: I hope so. It may not be easy to keep it up.

Pretty easy to say so here, but at the end of the day, it is something that you really must decide for yourself with your own heart and I can only hope that you are at that stage where you have made that decision and you are now -- once you have made that decision, you will be able to stick with it. So I am not going to include that term. [ 152 ] If you do fall off the wagon and you drink, at least you will not be arrested and brought back to jail solely because you are drinking. Okay.

So you may find that you have slipped, you may find, and then talk to Aunt Ava about how common that is, but at least you will not be arrested and brought back to jail simply because you are drinking. [ 153 ] THE ACCUSED: Okay. [ 154 ] THE COURT: Okay, so good luck and we will see you in 60 days. [REASONS FOR SENTENCE CONCLUDED]