R. v. Duerksen, 2017 MBPC 32

Cite# 2017 MBPC 32 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Melissa Hazelton, for the Crown ) - and - ) ) ) Theodore Mariash, for the Accused Colton Beardy ) ) Judgment delivered: ) July 24, 2017 CORRIN, P.J. [ 1 ] The accused has pled guilty to assault pursuant to

section 266 of the Criminal Code , housebreak with intent to commit assault pursuant to section 348(1) of the Criminal Code and failure to comply with a not attend condition of an undertaking to a justice pursuant to section 145(5.1) of the Criminal Code . All three offences were incident to the accused’s involvement in an incident occurring on August 2, 2015. [ 2 ] The then 20-year-old accused, who claims to have been intoxicated, broke into the victim’s dwelling, found his former partner of six years sleeping with her current boyfriend. Their mutual three-year-old child was also present in the bedroom.

The accused produced a box cutter tool and threatened to kill the new boyfriend. He then proceeded to punch him several times in the face. This victim was subsequently treated for a broken nose at hospital. The former partner was also struck, receiving punches to her left cheek and the right side of her head. She was also struck in the forearm when she attempted to protect herself during the attack. The former partner, Ms. Traverse, sustained bruising and soreness to the right side of her head, left cheek and right forearm but did not require medical attention.

The accused was arrested in the dwelling and provided police with a statement acknowledging his responsibility and guilt soon after these events. [ 3 ] The Manitoba Court of Appeal, in R. v. Duerksen , 2012 MBCA 41 stated: “that, absent exceptional circumstances, someone who breaks into another’s home once should generally expect a sentence in the range of two years” (at paragraph 4). The Crown has asked for a period of incarceration of four and one-half years inclusive of the time in custody already served by Mr. Beardy.

Defence counsel submits that the appropriate disposition would be a suspended sentence accompanied by probation conditions including community service work, counselling, an abstention order and letters of apology to the victims. [ 4 ] The Crown relied on the following cases in support of its recommendation: 1. R. v. McCowan , 2010 MBCA 45 , 2010 CarswellMan 200 .

An accused broke into a victim’s dwelling, found his wife in bed with the victim and punched him several times in the face causing him to suffer catastrophic and permanent injuries which included traumatic brain injury which left him permanently disabled. The Manitoba Court of Appeal determined that, although the sentence was on the low end of the range, that a sentence of five and one-half years incarceration could not be said to be unfit and accordingly dismissed the Crown’s appeal. 2. R. v. Turtle , 2006 MBCA 148 , 2006 CarswellMan 438 .

In this case the accused, while intoxicated, broke into a dwelling and caused unspecified injuries to two of the occupants, one of whom was his common-law wife. The sentencing judge described the potential for death or serious injury to have been “great”. At such time he was subject to bail conditions of no-contact with his wife and also abstention from alcohol. The accused also threw a knife at a police constable who attended the scene of the incident. The Court of Appeal determined that while the sentence of forty-two months was at the low end of the range, it was not so low as to be demonstrably unfit. 3.

R. v. Pakoo , 2004 MBCA 157 , 2004 CarswellMan 461 . The accused, a 45-year-old Aboriginal male with no previous record, was convicted of breaking and entering a dwelling house and committing assault, assault cause bodily harm and pointing a firearm, as well as using a firearm in the commission of an offence and other related offences. The accused, who was intoxicated, attended the residence of his former common-law spouse armed with a rifle.

He terrorized the spouse, her new boyfriend and the spouse’s children, discharging the rifle in the same room as an 11-year-old child and then attempting to fire it in the direction of the spouse and the boyfriend. Fortunately, the rifle jammed. He was found to have caused serious physical injuries to the boyfriend, and also caused some injuries to the spouse as a result of inflicting a beating to both. The Court

of Appeal noted that it would not categorize the incident as a “home invasion” case but stated that it bore a strong resemblance to such a case. The accused was sentenced to a five-year global term of imprisonment. [ 5 ] The defence distinguished the McCowan and Pakoo cases from our case on the following basis: McCowan involved very serious permanently disabling injuries suffered by the complainant who had spent approximately three months in hospital; Pakoo involved a loaded rifle which had been fired in the presence of an 11-year-old and would have been fired again if it had not jammed.

Defence acknowledged that the Turtle case was close to our case in many respects but observed that Turtle had actually used the knife and stabbed the victim as well as thrown it at close range at a police officer, making it more serious on its facts. Crown counsel rebutted that Turtle, like Mr. Beardy, had no record at the time of the offence, was also very young, being 21 and possessed similar family and community supports, was also described as relatively low-risk to reoffend, and that both had entered guilty pleas and expressed sincere remorse.

She also reminded the court that both offences were committed in circumstances of domestic violence and in breach of restraining orders protecting the female victims and that both accused had been intoxicated at the time of the offences. [ 6 ] Defence relied on the following caselaw: 1. R. v. Okemow , 2016 MBQB 240 . A total sentence of forty-four months was imposed in relation to a manslaughter offence. The accused had taken

part in two separate beatings of the deceased, both leading to his death, with several other accused. The court found that Mr. Okemow was the least involved of the three aggressors and had been highly intoxicated at the time of the event. The sentencing judge found that there were extensive Gladue factors and that the offender had been displaced in Winnipeg when his home community was deliberately flooded by the government to save other properties in the province, causing him to become “adrift” and subject to significant substance abuse.

The judge also found that he was highly remorseful and possessed genuine victim empathy and had taken steps towards rehabilitation in relation to alcohol treatment. The sentencing judge also recognized that the sentence she imposed was at the lower end of what might be considered appropriate but had done so in order to try and balance the aggravating factors “with the disadvantages suffered by Okemow and his prospects for rehabilitation”. She emphasized her belief that the safety of the community was best served by this approach. 2. R. v. Tran , 2015 MBCA 120 , and R. v. Peters , 2015 MBCA 119 .

The defence brought these decisions to the court’s attention in the course of his argument that our case was an “exceptional” case which warranted a similar approach i.e. the imposition of a community based disposition. The Court of Appeal had endorsed a two-year less a day conditional sentence in relation to the Tran matter which involved a charge of possession for the purpose of trafficking in cocaine and possessing proceeds of crime.

In Peters the Court of Appeal upheld a suspended sentence and three-year supervised probation order in reference to a charge of possession of cocaine for the purpose of trafficking and two breaches of the accused’s bail release. [ 7 ] There are a number of aggravating factors as outlined by the Crown. These include: 1. The context of the incident was domestic violence, a statutory aggravating factor prescribed by parliament; 2. The accused possessed a weapon; 3. The assaults were unprovoked; 4. A child was present at the time of the incident; 5.

The victims were effectively defenceless as they were both sleeping when Mr. Beardy entered their bedroom; 6. The attack was pre-meditated as Mr. Beardy acknowledged that he had become angry and upset because he had been recently told about Ms. Traverse’s relationship with the new boyfriend. [ 8 ] There are also several mitigating factors that favour lessening the sentence that might otherwise have been pronounced. These are as follows: 1. Mr. Beardy pled guilty prior to the preliminary hearing commencing; 2.

There are Gladue factors as well as diminished responsibility factors as set out in the pre-sentence report; 3. The accused is of general good character as related in the pre-sentence report; 4. The accused has demonstrated significant remorse for the offences and the injuries that he has caused; 5. The accused’s youth. [ 9 ] Mr. Beardy’s parents separated when he was only two years of age, leaving his mother to assume the burden of raising the accused and his three older siblings. Some members of his direct family are residential school survivors.

In 2011 the accused and his family and friends were dislocated from Lake St. Martin First Nation, their home community, to Winnipeg, due to the government’s deliberate flooding of their community. This decision was made in order to prevent flood damage to other communities. This situation caused profound change in Mr. Beardy’s life, change which defence described as causing him exposure to urban racism and general feelings of personal dislocation and social alienation. This situation was further compounded by other loses that impacted the accused after the forced evacuation of Lake St.

Martin: − In 2012, his brother Donovan died at the age of 26 of a heart attack. It is not known whether his deteriorated health was stress related and, if so, whether such stress was related to the displacement by government. − In 2013, his brother Christopher committed suicide. Defence suggested that he too may have been affected by the psychological

stress of the dislocation. − In 2015, the long-term relationship with the victim, Traverse, ended. No psychiatric or psychological evidence was adduced connecting the breakdown with the community displacement. [ 10 ] The pre-sentence report indicates that Mr. Beardy is at a medium risk to reoffend. The court accepts defence counsel’s argument that this is probably only so if he remains in Winnipeg where he has few supports, that his risk would be significantly reduced if he returned to the support of his indigenous home community as he plans to do after his release.

It is apparent from the pre-sentence report that he led a much more stable and productive life when he resided at Lake St. Martin First Nation. I agree with defence counsel that the large contingent of family and friends who attended his sentencing hearing certainly seems to confirm that he has considerable community and family support. There is little question that reconnecting with his home community would help the accused regenerate if not rehabilitate.

This is particularly important in the context of rehabilitation because the pre-sentence report discloses that he has become quite depressed and introverted in the aftermath of these offences. The court notes that he actually attempted suicide shortly after being charged with these offences. [ 11 ] Defence informed the court that the accused has been assured of employment by the Lake St. Martin Band Office in relation to the reconstruction of his community.

In this respect, he has been afforded an opportunity to participate in a house building program where homes will be pre-constructed for shipment to his home community to replace the flooded housing stock. Perhaps because of this opportunity and its presumed stabilizing effects, the pre-sentence reporter describes Mr. Beardy as a viable candidate for community supervision. The court agrees with defence that the work opportunity would probably stabilize the accused and assist in his rehabilitation. For this reason, Mr.

Beardy would have been an excellent candidate for a conditional sentence if same were available in the circumstances. The court agrees with defence that a traditional jail sentence is most probably unnecessary to deter Mr. Beardy from committing a similar or any other offence. [ 12 ] While I agree with the Crown that public deterrence and denunciation are important factors to be considered in relation to the offences before the court, it is nevertheless my opinion that they should not be over emphasized in relation to the exceptional Gladue -like factors which present in this case.

I agree with defence that the accused’s youth in relation to the exceptional hardship and impact presented by his community’s forced relocation certainly suggest somewhat diminished responsibility for his actions in relation to the post break-up phase of his relationship with Ms. Traverse. [ 13 ] Court was told by the Crown that Ms. Traverse is now open to and seeking mediation with the accused and does not want protective conditions imposed on him, that she sees him as a good parent and hopes to share child rearing responsibility with him in the future.

This suggests to me that even the victim, Traverse, does not perceive Mr. Beardy as a future threat to her wellbeing. I’m admittedly less sanguine about the other victim’s perceptions in such respect. [ 14 ] As mentioned before, defence counsel has encouraged the court to suspend sentence on the basis of exceptional circumstances.

Exceptional circumstances may include a combination of factors: things like the absence of a criminal record, significant and objectively identifiable steps toward rehabilitation, the obtaining of gainful employment, remorse and acknowledgment of the harm done to society as a result of the offences. This list is non-exhaustive but at the end of the day the caselaw makes clear that there must be circumstances that are above and beyond the norm to justify a non-custodial sentence when deterrence and denunciation are the primary sentencing objectives.

Generally, there must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around and that the protection of the public was subsequently better served by a non-custodial sentence. It is only a relatively rare case where the standard of exceptional circumstances is met. And while a suspended sentence can attract similar strict punitive conditions as a conditional sentence, it must be remembered that a conditional sentence is legally considered an incarcetory sentence.

Notwithstanding this, defence reminds me that the superior courts have noted on occasion that a suspended sentence can achieve both deterrent and a denunciatory goals. For instance, in R. v.

Chang , 2002 BCCA 644 , Esson, J.A. stated that the fact of being arrested, tried and convicted can also address these principles and that the consequences of conviction per se can also have a deterrent effect. [ 15 ] While the forced evacuation and subsequent relocation of the accused’s community does not in and of itself constitute a recognized Gladue factor as it was clearly not done as an attempt to assimilate the residents of Lake St. Martin, I agree with defence counsel that it is still nevertheless necessary that I consider same as a unique background factor which may have played a

part in bringing this Aboriginal offender before the court. In this respect there is no doubt in my mind that the removal and forced relocation of the youthful offender from his remote and rural indigenous community to a large multi-cultural urban centre significantly destabilized him in relation to his ability to cope with stress. While this case clearly does not appear to involve displacement due to colonialism, it nevertheless involves unexpected and forced displacement to a very different and presumably quite foreign environment.

The court is of the view that this constitutes a type of unique circumstance in relation to the accused that bears on the sentencing process. In this respect, the court observes that

section 718.2 (

e) of the Criminal Code mandates sentencing judges to consider all sanctions other than imprisonment in relation to all offenders, including Aboriginal offenders, and in so doing, consider alternative approaches respecting what might constitute a fit sentence in a case such as this. This having been observed, parliament has also instructed sentencing judges to consider sanctions that are “reasonable” in the circumstances of the offence. [ 16 ] A sentencing judge must also keep in mind that the impact of imprisonment is different for each offender.

Gladue and Ipeelee imply and other sentencing jurisprudence suggests that the specific impact of incarceration on an offender should be considered by the sentencing judge. Indeed, suggested jail sentences that remove Aboriginal offenders far from their community and family support systems must be carefully scrutinized as their impact on the offender may well be potentially counterproductive because of their inherently harsh and cruel personal consequences.

As well, psychiatric literature and assessments have also shown that jail can be particularly difficult for offenders with suicidal tendencies or mental disorders. Since the pre-sentence report references Mr. Beardy’s depression and suicidal tendencies, I am very worried that Mr. Beardy’s capacity to restore himself will be seriously depleted if he is sentenced to too long a term in jail.

For these reasons I am of the view that it would be imprudent to accord too much weight to general deterrence in this matter. [ 17 ] The court is of the view that the most appropriate sentence in the circumstances of this case and this offender must certainly encompass a significant rehabilitative approach. I particularly believe that it is important that I tailor a sentence that will allow him to

engage in community programming that will provide him with occupational training as same will not only serve to stabilize his personalfinancial future but also allow him to provide financial support for Ms. Traverse and their child going forward. Indeed, participation inthe rebuilding of his community will not only help him rehabilitate, it will also serve to regenerate and re-stabilize the lives of allmembers of his dislocated indigenous community. [18] The court is satisfied that the circumstances of this case are both unusual and extraordinary.

The court also observes that eachcase must be considered in the light of its own circumstances and if those circumstances are extraordinary, or rare, and suggest that along jail sentence is not appropriate, then a lengthy jail sentence should not necessarily be imposed. There are some cases where theinterest of society, or those of the victim and her family, will be better served by a sentence which gives more weight to rehabilitationthen to other sentencing aims such as denunciation and deterrence. As Twaddle, J.A. opined in R. v.

Scanlon, (MBCA), 1995, 107 ManR (2d) 190 (MBCA) at paragraphs 12 and 13: As with all general rules, however, exceptions exist. The general rule does not mandate a penitentiary term in every case. Sentencingjudges retain a discretion to impose a lesser term or even a non-incarcetory one, where the circumstances justify the chosen penalty. Thedifficulty is in identifying what those circumstances are. This court has frequently referred to such circumstances as “exceptional” (or sometimes “extraordinary”). This somewhat begs thequestion.

Until the usual circumstances are defined, how can it be said which are exceptional? The fact is, however, that thecircumstances of an offence and an offender are of such infinite variety that it is next to impossible to say in the abstract which are usualand which exceptional. The best this court can do is to refer to earlier cases in which exceptional circumstances have been recognized asjustifying departure from the general rule. [19] Monnin, J.A. in Tran, provides extensive examples of cases where judges have found exceptional circumstances to exist.

Hisexamples clearly demonstrate that exceptional circumstances typically rest upon proof of some mitigating factors that tend to lessenguilt, however, he also makes clear that the concept is elastic in meaning and that courts have wisely refrained from attempting toprecisely delineate and define its parameters. [20] The court is satisfied that Mr. Beardy is now well on his way to being fully rehabilitated. I also accept that he is genuinelyremorseful and that additional custody is not necessary for his specific deterrence.

However, it is further my opinion that a suspendedsentence would not be appropriate in this matter because of the level of violence, use of a weapon, and the injuries which were allcommitted in the context of domestic violence.

However, given the mitigating factors as well as all the other factors that I havementioned, I am of the opinion that an appropriate sentence on the break and enter is 20 months; on the assault 12 months concurrent;and on the failure to comply, a further sentence of 3 months consecutive. [21] I must, because I have imposed a consecutive sentence, take a “last look” to ensure that the total or cumulative sentence is fitinsofar as it doesn’t exceed the overall culpability of the offender and become a “crushing sentence” i.e. one that is not in keeping withthe offender’s record and future prospects.

With this in mind I reduce the sentence from 23 months to 20 months as follows: • Breach and enter charge… 17 months • Assault charge… 12 months concurrent • Breach of undertaking… 3 months consecutive [22] In addition, there will be a 10 year weapons prohibition pursuant to section 109(1) of the Criminal Code and a section487.051(1) DNA order, as break and enter is a primary offence. The court also orders 12 months probation after release. The conditionsare to be as follows: 1. That he keep the peace and be of good behaviour; 2.

That he report to Probation Services within two working days after his release and thereafter as directed; 3. That he report any changes in name or address prior to implementing same; 4. That he attend, participate in and complete any counselling, including clinical psychological counselling, anger managementcounselling or substance abuse counselling or treatment as directed by his supervisor; 5. That he seek and obtain employment and/or suitable vocational training opportunities as directed; 6.

That he abstain absolutely from the consumption and/or possession of alcohol, illegal drugs including legal drugs unless he has acurrent physician’s prescription for same. [23] The court recognizes that it is imposing a sentence that is at the lower end of what is considered appropriate in thecircumstances. As such, it wishes to assure that in so doing it has attempted to balance the several aggravating features with theexceptional disadvantages suffered by Mr. Beardy and his prospects for rehabilitation.

I also feel that the totality of the circumstancessuggest that a more rehabilitative sentence will be in society’s interest as well as that of the offender. It is further my opinion that thesentence I have imposed should not only serve to denounce Mr. Beardy’s conduct but also should deter others from participating insimilar conduct. For there reasons I am of the opinion that the over-all principles of sentencing as set out in the Criminal Code and therelated caselaw are best served. “Original signed by:”

CORRIN, P.J.