R. v. Lewis and Lewis Date:, 2014 BCPC 93

Citation: R. v. Lewis and Lewis Date: 20140326 2014 BCPC 0093 File No: 57978-1, 58611-1, 58845-2-C, 58845-3-A Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LLOYD JASON LEWIS LOUIE JAMES LEWIS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Accused Lloyd Lewis D. Walsoff

Counsel for the Accused Louie Lewis : H. Chambers Place of Hearing: North Vancouver , B.C. Date of Hearing: December 13, 2012 Date of Judgment: March 26, 2014 [ 1 ] THE COURT: These are my reasons on sentence regarding Louie James Lewis and Lloyd Jason Lewis. Louie Lewis and Jason Lewis pleaded guilty on February 19th, 2013, to breaking and entering a dwelling house on November 27th, 2012, contrary to s. 348(1)(b).

The two men are brothers from the Squamish Nation and proceeded through the sentencing process together. [ 2 ] On the same date, Jason Lewis also entered guilty pleas to assaulting a police officer on April 22nd, 2012, and shoplifting from Sears on September 29th, 2012. [ 3 ] The matter proceeded through the First Nations Sentencing Court in North Vancouver. A Pre-Sentence Report with a Gladue component was prepared for each of the offenders. The sentencing hearing concluded on February 20th of 2014.

The lengthy delay in the imposition of sentence was due to a number of factors. [ 4 ] Breaking and entering a dwelling house is a very serious charge and a custodial sentence was within the appropriate range for both offenders. Crown counsel submitted that the range was between nine months and five years depending on the circumstances of the offence and offenders. [ 5 ] Defence counsel were originally of the view that a conditional sentence would be appropriate in all the circumstances.

Crown counsel initially submitted that serving any term of custody in the community would also be within the appropriate range, although the court was asked to consider a period of institutional incarceration. However, it then came to the attention of counsel that this offence occurred just a few days after Parliament saw fit to remove residential break and enters from those offences for which a conditional sentence is available and counsel requested further time to prepare the sentencing. [ 6 ] There was also a delay in getting a psychological report prepared for Louie Lewis.

This was due in part to a lack of diligence on his part and due to some confusion on the part of Forensic Psychiatric Services about contacting him at his recovery house. At the end of the day, a report was not prepared for him. A similar report was ordered for Jason, but was also not done. Circumstances of the Break and Enter [ 7 ] The break and enter occurred at just before noon. The home was unoccupied at the time. A neighbour heard the two men force open the door of the residence and called the police. The offenders went in, went about inside collecting electronics and other valuables.

They were located by the police in the driveway. Louie Lewis had two laptops. Jason Lewis had a large purse filled with change, jewellery boxes containing jewellery, a baseball, and some letters. [ 8 ] The home was occupied by two families with children. They are seeking $1,000 in restitution which they had to pay out of pocket to repair the front door of their residence. They may be willing to participate in a victim-offender reconciliation process with the North Shore Restorative Justice Society.

Circumstances of the Assault on Police Officer and Shoplifting [ 9 ] The assault of the police officer occurred late in the evening outside a bar in the Park Royal Mall area. Jason Lewis had been asked to leave the bar as he was causing a disturbance and was grossly intoxicated. He was with his sister and they had been at their grandfather's memorial that day. The police arrived and checked Mr. Lewis and determined he was bound by a no-alcohol term. [ 10 ] When they advised he would be arrested, he became physically resistant and tried to spit on an officer. He was also verbally aggressive.

He kicked out violently as he was placed in the police vehicle and struck the officer. He also damaged the police vehicle. [ 11 ] The circumstances of the shoplifting are that Mr. Lewis went to the Sears in Capilano Mall and selected a suitcase. He proceeded to Men's Coats and filled the suitcase with five jackets. The value of all the items was just under $1,000. When he was approached by store security, he abandoned the suitcase and fled. The loss prevention officer pursued him and eventually tackled him.

He continued to be resistant as he was handcuffed. [ 12 ] One of the loss prevention officers was injured and prepared a victim impact statement in which he described being scraped up and sore for a few days. He also spoke to the more lasting effect the struggle with Mr. Lewis had on his job performance. He is now apprehensive about approaching suspects and feels more vulnerable. The Gladue Factors and the Antecedents of the Offenders [ 13 ] A Gladue report was not before the court as both offenders were unable to privately fund such a report and their counsel were not able to obtain funding from Legal Aid.

Instead, the Pre-Sentence Reports included some limited information about the history of the Squamish Nation and the effects of contact and assimilation policies on that Nation and the list of possible treatment resources for aboriginal offenders. The reports contained very limited information and, with respect to Louie Lewis, incorrectly reported information about the personal background of the offenders. [ 14 ] Gathering information from offenders about the impact of the Gladue factors on their families and their lives is a difficult task and probation officers are not well positioned to do so effectively.

The experiences of First Nations people often involve significant trauma and often involve egregious conduct by family and community members. Most people would be very reluctant or unable to share

intimate and disturbing information about the trauma they have experienced with a person who is not independent and whose roleincludes investigating and reporting criminal charges against them. [15] Although some offenders may develop a rapport and level of trust with their counsel, lawyers are not trained to collect theinformation relevant to the preparation of Gladue reports.

They are not compensated for the extensive time which would be involved ingathering such information and most already go above and beyond their retainers when participating in a First Nations Court proceeding. [16] It is also unreasonable to expect that offenders who have suffered from the impact of Gladue factors would be able tomeaningfully communicate their histories in the course of sentencing proceedings in court.

In my experience, sitting on the circuit inBella Bella for over five years and now in First Nations Court in North Vancouver for two years, even with the support of people close tothem or in the presence of trusted intermediaries, it is unrealistic to expect to receive background information in such a stressful andunfamiliar atmosphere where their liberty is at stake. [17] It should not be forgotten that many First Nations people themselves do not know the history of their families as they have beenseparated from them or have lost their parents and extended family due to Gladue factors.

It is apparent that many simply choose not toshare the narrative of their trauma with their children and grandchildren or extended family. [18] In R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, at paragraphs 83 and 84, the Supreme Court of Canadainstructed judges cast with imposing sentences: . . . to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. [19] The court described this as "a statutory duty." They suggested that courts should have "some evidence" of the circumstances ofthe offender as an aboriginal person and alternatives to incarceration.

This information is now in theory put before the court through aGladue report. [20] However, in my experience, due to a lack of resources, it is the rare case where such a report is before the court. Instead, wehave Pre-Sentence Reports such as were prepared in the present case which gloss over the post-contact history of the offender's nation orband and provide little information about the personal impact the assimilation policies and residential school system have had on anindividual offender and their families and which also make passing reference to resources in the community.

It is even rarer to receiveinformation about the views of the First Nations community involved or a specific culturally sensitive justice practices out of a particularnation or band. [21] A paucity of evidence about the personal impact of Gladue factors or about available alternative restorative or reparativeoptions makes the task of the court in crafting appropriate remedial sentences for aboriginal offenders a more difficult one.

However,the absence of an effective and sensitive process to gather this information cannot prejudice the interests of specific offenders. [22] In order to impose just and appropriate sentences which give effect to the directions in Gladue and now Ipeelee and meet theprinciples of sentence, I find I must assess the limited information presented and draw inferences from it to determine if the moralculpability of an individual aboriginal offender is reduced by those unique experiences.

I find I must also rely on my own knowledge ofresources in addition to any suggested to the court in submissions to craft appropriate restorative, reparative, and rehabilitative terms. Jason Lewis [23] Jason Lewis is now 34. He spoke at the sentencing hearing about his upbringing. He described his mother as a "ragingalcoholic." Both her parents were residential school survivors. His father, who was from the Esquimalt Band, left the family when hewas five years of age and Louie was a baby. Jason has not had any relationship with him.

His mother did not become sober until he was12. [24] He said he and Louie were exposed to domestic violence at the hands of her "psychotic and abusive" male companion. Theyalso moved frequently which necessitated many changes in schools. His childhood was characterized by neglect, a lack of boundaries,anger, despair, trauma, and loss. There was also involvement by the Director of Child Protection. Jason said that Louie was "draggedinto his mother's dysfunction" and that Louie was a follower and easily influenced by her.

Jason is also regretful that he caused hisbrother to become involved in this offence. [25] At age 12, Jason began living with his grandparents while Louie remained with their mother. His grandparents gave Jason thelove and security he needed, but he did not know how to accept it. He began abusing alcohol at a young age. He spent time in custodyas a youth which he remembers as providing some ongoing stability. Jason reports that he was often drunk to the point of blackouts andengaged in fighting while intoxicated. He also has a history of cocaine abuse.

He believes he suffered a number of head and backinjuries as a result. He requires some life skills to overcome a memory or cognitive deficit. [26] Jason has a lengthy criminal history. There are six prior convictions for robbery. The first four occurred when he was a youth. The next two occurred in 2001 and he received a conditional sentence of 20 months. In 2000, he was convicted of break and enter,assault, and assault causing bodily harm and was sentenced to one year in custody.

In 2001, he was convicted of assaulting a policeofficer. [27] Since 2002, there have been breaks in his offending and, aside from a conviction for flight from a peace officer in 2010 andassaulting a police officer in 2011, his offences have been thefts and mischief and two failures to comply with bail or probation. [28] He had a relationship with a woman from 2000 to 2005 and they have two children. After that break-up, he acknowledges thathis behaviour spiralled out of control. However, he has always maintained a positive relationship with her and his children and hasprovided for their support when able.

He said that his primary motivation to change his life for the better has been to provide securityfor his children.

[ 29 ] Ironically, the desire to provide that security was what motivated him to commit the shoplifting and break and enter as he needed to provide money to his children's mother for rent. It is noted in the report that he lacked problem-solving skills as he was able, immediately after the break and enter offence, to assign his annual stipend from the band to her to help her pay the rent.

In my view, this lack of such a basic skill relates back to his dysfunctional upbringing. [ 30 ] He has a third child which resulted from a short-term relationship with a woman from out of the province and does not have contact with them. [ 31 ] Over his adult life, he has made attempts to overcome his substance abuse issues. He attended Round Lake in 2011 and reports coming to some understanding of the underlying trauma that causes him to suffer depression and to abuse substances. He also understands that he needs to pursue trauma counselling.

He has not had any alcohol since September of 2012, but was coming off a drug binge at the time of the break and enter. [ 32 ] After his release on bail on these matters, he resided at a recovery facility until May 9th, 2013. Since that time, he has been attending AA and NA meetings twice weekly at the Friendship Centre in Vancouver. He is currently involved in a healthy relationship with a female who is pro-social and employed. They have lived together for almost two years. [ 33 ] Jason has been engaged in planning for long-term employment.

At one point, he was investigating whether he might be able to open a recovery or treatment facility. He developed a business plan and had saved $8,000 towards that goal before determining it was not feasible. His plan now is to become a metal fabricator and obtain employment in shipbuilding. [ 34 ] I just pause. That is correct? THE ACCUSED JASON LEWIS: Yes. THE COURT: Yes, okay. I was going by memory. I did not have a note. [ 35 ] At present, he is employed full-time by a friend who has a construction company and earns $25 an hour.

He has also dealt with an outstanding debt to ICBC and is in a position to obtain a driver's licence. [ 36 ] There are two Pre-Sentence Reports prepared for Jason in this matter. The first was completed in mid-February of 2013. It was not a positive report in that he was not reporting, was not pursuing counselling, and was not interested in complying with the terms of any community-based disposition. [ 37 ] The second report was prepared in mid-November 2013. It reflects the progress he has made since being in the community and, most importantly, a significant change in attitude.

He has been compliant with reporting since leaving the recovery facility. He is described as accepting responsibility for his behaviour and for his recovery and being less resistant to supervision. He has a more positive outlook overall and realizes that substance abuse is preventing him from making something of his life. [ 38 ] He described to his probation officer that his anti-authoritarian attitude and behaviour is the result of suffering from discrimination.

He also spoke about the stories his grandfather told him about his experiences in residential school which have caused Jason to feel angry toward the white or dominant culture throughout his life. [ 39 ] At the sentencing hearing, he spoke about how his probation officer, Ms. Van Allside [phonetic], has helped him to realize that acting out against the police and being generally resistant to authority was self-defeating. Over the time that we have been dealing with Jason in First Nations Court, the change in attitude noted by his probation officer has been apparent. Louie Lewis [ 40 ] Louie is now 28.

He reported to the preparer of the Pre-Sentence Report that his childhood was happy and free of substance abuse or other abuse. This is not likely a correct history given his mother's ongoing alcoholism until he was eight and the circumstances described by his older brother. He said he has seen his father from time to time until four years ago and does not now know where his father is. [ 41 ] Louie has suffered from epilepsy over his life and was seizure-free for four to five years, but in the past year has had two seizures and is again receiving medical care.

He also suffered at least one closed head injury when he was a teen. He has never been assessed to determine what, if any, deficits he has as a result of the epilepsy and head injury, but those close to him believe the injury did negatively impact his cognitive functioning. [ 42 ] His mother reports that he began to abuse alcohol when he was in grade 9 while Louie says he did not start to drink until he was 19. [ 43 ] He is a few credits short of his high school diploma. He has had some employment doing various kinds of labour.

He has received social assistance disability since age 20. [ 44 ] Louie has a criminal history. In 2006, he was convicted of theft and received a discharge. In 2007, he was convicted of uttering threats, failure to appear, and breach and received a suspended sentence. In 2008, he received a term of probation for possession of a weapon and breach. [ 45 ] In May of 2008, he pleaded guilty to a charge of sex assault which involved an unconscious female. He, too, was intoxicated.

In that matter, he was represented by G.P., a lawyer who is now disbarred and who was convicted of sexual interference with a client who was a youth. The import of this information is that Louie Lewis and his family continue to question whether with proper representation he would have received a more lenient sentence.

[46] In November of 2010, he received 30 days' jail for a breach. In February of 2011, he was convicted of aggravated assault whichinvolved stabbing two people from behind while he was intoxicated and received a four-month sentence. [47] Louie attended a six-week residential drug and alcohol program at Ktunaxa/Kinbasket in 2008. He began drinking again soonafter completion. He found attending a drug and alcohol counsellor in 2011 and 2012 with his nation to have been of assistance inmaintaining his sobriety. He was intoxicated at the time of the break and enter.

Since his release from custody on this matter, he hasbeen in two recovery facilities and has now been clean and sober for 16 months. He is at a second-stage home and doing well. Heattends the Friendship Centre twice weekly for AA and NA. He participates in the West Coast Cultural Night there and is interested inparticipating in pow wows. His change in attitude has also been apparent in his appearances before the court. [48] At one point, he was to leave recovery, but was able to be persuaded to remain and to accept that he continued to need assistancein maintaining his sobriety.

He wishes to move to Squamish to live with relatives. The household is a dry one and offers appropriatesupport for him. He will also have assistance in accessing the programming and counselling available to him through the Nation. [49] It is highly likely he will require ongoing and intensive treatment for his trauma and substance abuse. In order to determinewhat will be effective for him, he will need to be assessed with respect to his cognitive abilities. Presentence Custody and Release Terms [50] Both offenders remained in custody for 17 days until December 14th, 2012.

They were released to reside in recovery facilitiesand have been bound by strict terms including reporting, residing at a recovery facility or as directed, a strict curfew, and abstinence. Some of these terms were relaxed over time as their circumstances settled. Principles of Sentence [51] In R. v. Ladue, 2011 BCCA 101, Madam Justice Bennett addressed the need to give effect to the circumstances of offenders ofaboriginal heritage. Although the court was considering an appeal from a long-term offender application, her analysis is exhaustive and,in my view, compelling and bears repetition in full here.

At paragraph 34 to 60, she said -- and I am going to spare everyone, I am notgoing to read all that into the record. I will just ask the transcribers to insert those passages, but I do commend the case if you have notread it. 34

Section 718.2 (

e) of the Criminal Code states: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. 35 This provision was part of Bill C-41 which was proclaimed in force on September 3, 1996. Parliament took the step of codifyingprinciples of sentencing, and while many of the principles were developed over decades (if not centuries) of jurisprudence andphilosophical debate, some principles were new. The principle of restraint when imposing a sentence, found throughout the Bill, is not initself a new principle. What was new was the principle's specific articulation in s. 718.2(

e) which included a statutory direction forsentencing judges to pay particular attention to the circumstances of Aboriginal offenders. 36 The rationale for the specific reference to the circumstances of Aboriginal offenders was made clear by the then Minister ofJustice, Allan Rock, when he appeared before the House of Commons Standing Committee on Justice and Legal Affairs and said: [T]he reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations ofCanada.

I think it was the Manitoba justice inquiry that found that although aboriginal persons make up only 12% of the population ofManitoba, they comprise over 50% of the prison inmates. Nationally aboriginal persons represent about 2% of Canada's population, butthey represent 10.6% of persons in prison. Obviously there's a problem here. 37 The provisions were introduced in an attempt to remedy the situation of the high overrepresentation of Aboriginal people inprison. 38 In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada comprehensively examined thisprovision. Ms.

Gladue, an Aboriginal woman, aged 19 years, was convicted of manslaughter in the death of her common-law husband.She received a sentence of three years' imprisonment. 39 The Court gave important directions to judges with respect to the application of this provision. The Court held that s. 718.2(e)changes the method of analysis to be used in determining a fit sentence for an Aboriginal offender. At paras. 33-34, the Court said this: In our view, s. 718.2(

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provisionconsists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges toundertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence inthe particular case. It should be said that the words of s. 718.2(

e) do not alter the fundamental duty of the sentencing judge to impose a

sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practical matter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders. What s. 718.2(

e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender. In our view, the scheme of

Part XXIII of the Criminal Code , the context underlying the enactment of s. 718.2(e), and the legislative history of the provision all support an

interpretation of s. 718.2(

e) as having this important remedial purpose. In his submissions before this Court, counsel for the appellant expressed the fear that s. 718.2(

e) might come to be interpreted and applied in a manner which would have no real effect upon the day-to-day practice of sentencing aboriginal offenders in Canada. In light of the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system, we do not consider this fear to be unreasonable. In our view, s. 718.2(

e) creates a judicial duty to give its remedial purpose real force. 40 The Court reiterated its position on the newly created duty of the judiciary at paras. 64-65: ... The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.

The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons.

What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. 41 The Court then set out "A Framework of Analysis" for sentencing judges. At para. 66, the Court discussed the "wide range of unique circumstances" affecting Aboriginal peoples. In particular, the Court looked at two issues which are unique to Aboriginal offenders: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. 42 The Court identified what it saw as systemic and background factors that caused many Aboriginal people to become involved in criminal activity. These include dislocation and economic development resulting in low incomes, high unemployment, lack of opportunities, lack of education, substance abuse and community fragmentation.

Dislocation refers to the marginalization of Aboriginal peoples onto reserves from their traditional lands and impingement onto their traditional lands as a result of economic development. In essence, the Court acknowledged the historical process of colonization as the root cause of many of the enormous difficulties facing Aboriginal peoples.

The Court directed sentencing judges to take these factors into account, and consider whether other forms of sentences, such as restorative sentencing, would be more appropriate than prison. 43 At para. 69, the Court said this: In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender.

While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. 44 The Court also noted that traditional sentencing principles such as deterrence, denunciation and separation of the offender are often less relevant to Aboriginal communities, which traditionally place more weight on reparation and restorative sentences.

45 The direction from the Supreme Court could not be clearer. The unique circumstances of an Aboriginal offender must be taken into consideration when passing sentence. The extent to which these circumstances will affect a sentence will depend on each case. The Court made it clear that there is no automatic Aboriginal discount of the sentence. Furthermore, the more serious the crime, the more reduced a role these circumstances will play in crafting a fit sentence: see R. v.

Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207. 46 One might reasonably expect the overrepresentation problem to have abated somewhat in the fifteen years following the introduction of s. 718.2(e). However, current statistics, which I refer to below, show that instead of declining, the Aboriginal population in prisons has been increasing since the proclamation of Bill C-41 and the decision in Gladue . 47 There were a number of reports and commissions referenced in Gladue which provide the context for the proclamation of s. 718.2(e).

I will briefly review some of this material in an attempt to emphasize the importance of the direction of restraint in sentencing. 48 The causes of overrepresentation of Aboriginal people in Canada's prisons are complex. It is clear that requiring judges to pay special attention to the unique circumstances of Aboriginal offenders offers very limited remedial assistance to the problem, which transcends the criminal justice system. It is one of those initiatives which provides, to quote the report of the Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, "short-term palliative relief".

Judges imposing sentences cannot, and surely are not, expected to touch the root causes of overrepresentation of Aboriginal people in prison, some of which are created by socioeconomic marginality and deprivation, along with systemic discrimination. 49 In Bridging the Cultural Divide, the Royal Commission on Aboriginal Peoples spends a considerable amount of time reviewing the serious problem of overrepresentation of Aboriginal people in prison, which has been documented and commented on since as early as 1967.

In 1988, the Canadian Bar Association retained Professor Michael Jackson to prepare a report which he called "Locking Up Natives in Canada". Professor Jackson made the bleak observation, also referred to by the Court in Gladue at para. 60 , that in Saskatchewan an Indian boy turning 16 in 1976 had a 70% chance of at least one stay in prison by the time he turned 25 years old. He said, at 216: Put another way, this means that in Saskatchewan, prison has become for young native men, the promise of a just society which high school and college represent for the rest of us.

Placed in an historical context, the prison has become for many young native people the contemporary equivalent of what the Indian residential school represented for their parents. 50 In 1988, the Aboriginal population in Canada was 2%, while Aboriginal people represented 10% of the federal penitentiary population, including about 13% of women in federal institutions. Between 1998 and 2008, the population of federal Aboriginal offenders increased by 19.7% and the number of federally incarcerated Aboriginal female offenders increased by 131%.

By 2009, the Aboriginal population comprised 4% of the general population, while the population of federal Aboriginal offenders stood at 19.6%, and 33.1% if just considering female Aboriginal offenders. In British Columbia, the Aboriginal population in prison as of 2006/2007 was 22% while the population in the community was 5%. 51 While all of the principles and purposes of sentencing must be weighed and considered (see R. v.

L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163 at para. 17 ), when sentencing an Aboriginal offender, consideration must be given to the principles of rehabilitation, restorative justice and promoting a sense of responsibility in the community. These are the principles that many commissions and reports acknowledge are more culturally ingrained for the Aboriginal person than deterrence, denunciation and separation. In Gladue , the Court said this at paras. 77 and 78: ...

As explained herein, the circumstances of aboriginal offenders are markedly different from those of other offenders, being characterized by unique systemic and background factors. Further, an aboriginal offender's community will frequently understand the nature of a just sanction in a manner significantly different from that of many non-aboriginal communities. In appropriate cases, some of the traditional sentencing objectives will be correspondingly less relevant in determining a sentence that is reasonable in the circumstances, and the goals of restorative justice will quite properly be given greater weight.

Through its reform of the purpose of sentencing in s. 718, and through its specific directive to judges who sentence aboriginal offenders, Parliament has, more than ever before, empowered sentencing judges to craft sentences in a manner which is meaningful to aboriginal peoples. In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. 52 Judges can only play a limited role in ameliorating the overrepresentation of Aboriginal people in Canadian prisons, as the root causes of this phenomenon stretch far beyond the reach of the courts. However, despite these limitations, we have been directed by both Parliament and the Supreme Court to consider the unique circumstances of Aboriginal people and to implement community-based sentences whenever appropriate.

53 I would also add that the choice is not simply custody or not custody. Sometimes a reduction in the length of a sentence may be appropriate to accommodate subsequent probation orders in order to achieve a restorative sentence.

If a prison sentence is required because of the nature of the offence and circumstances of the offender, it may be appropriate to focus on sanctions which incorporate less time in prison, rather than continuing to increase the sentences imposed ( Gladue at para. 79 ). 54 Given the increasing Aboriginal prison population in both British Columbia and Canada, in my respectful view, the principles stated in Gladue need to be reiterated. 55 In Gladue , at para. 80 , the court suggested some questions a judge can answer in order to achieve a fit sentence: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?

What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown?

Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? 56 In R. v. Mack , 2008 BCCA 520 , this Court held that a failure to refer to s. 718.2(

e) is not necessarily a reversible error. The Court said, at para. 12: Justice Cory and Justice Iacobucci also commented at paragraph 85 that

section 718.2(

e) does not impose a duty on a sentencing judge to provide reasons, although they indicated that it would be easier for a reviewing court to determine whether attention was paid to the circumstances of the offender as an aboriginal person if reasons are given. Hence, the failure of the sentencing judge to specifically mention

section 718.2(

e) does not, in itself, constitute error. The sentencing judge was aware that Mr. Mack was an aboriginal person, and she referred at paragraph 5 of her reasons to the principles of sentencing, which she is presumed to know. There was nothing in the submissions regarding Mr. Mack's circumstances as an aboriginal offender that the judge was required to specifically address in her reasons for sentencing. 57 In my respectful view, while the failure to reference s. 718.2(

e) is not automatically an error, judges cannot relinquish their duty and fail to follow the analysis clearly set out in Gladue . This Court recently observed in R. v. Napesis , 2010 BCCA 499 , at para. 17 : In my view, it behoves every sentencing judge, even those faced with what is effectively a joint submission on sentence in a busy court, not only to take seriously the duty to aboriginal offenders summarized at para. 93 of Gladue , but also to demonstrate on the record and in reasons that he or she has done so.

As almost everyone involved in the justice system will attest, the very best result of a criminal prosecution is a rehabilitated offender. That result can be achieved only if counsel and the sentencing judge fulfill the expectations implicit in their acceptance of roles in that system, particularly during the sentencing process. 58 In Gladue , the Court did not insist on reasons, but highly recommended that reasons be provided. In R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3, the Court clarified that reasons sufficient to permit appellate review are necessary. In R. v.

Wells , supra , the Court reiterated the duty of the trial judge in every case to take judicial notice of systemic or background factors that have contributed to the difficulties faced by Aboriginal peoples. Additionally, the trial judge is required to inquire into the relevant circumstances when an Aboriginal person is to be sentenced (paras. 53-54). However, the decision also modifies the requirement established in Gladue .

The Court said this at para. 55: Having said that, it was never the Court's intention, in setting out the appropriate methodology for this assessment, to transform the role of the sentencing judge into that of a board of inquiry. It must be remembered that in the reasons in Gladue , this affirmative obligation to make inquiries beyond the information contained in the pre-sentence report was limited to "appropriate circumstances", and where such inquiries were "practicable" (para. 84). The application of s. 718.2(

e) requires a practical inquiry, not an impractical one. As with any other factual finding made by a court of first instance, the sentencing judge's assessment of whether further inquiries are either appropriate or practicable is accorded deference at the appellate level. 59 In my view, what is critical, fifteen years after the proclamation of Bill C-41, is the fact that the overrepresentation of Aboriginal people in prison is increasing.

The decision in Napesis emphasizes the importance of sentencing judges taking the time to apply the principles as they relate to Aboriginal offenders. 60 The Ontario Court of Appeal recently addressed the importance of the application of restraint and restorative justice principles found in s. 718.2(e). In R. v. Jacko , 2010 ONCA 452 , 256 C.C.C. (3d) 113, the trial judge acknowledged and considered the circumstances of the Aboriginal offenders; however, in the Court's view, he erred by failing to give sufficient weight to the appellants' Aboriginal heritage. Of significance, Mr.

Justice Watt, for the Court, said at para. 87:

In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentence imposed. [ 52 ] I must consider all of the principles of sentence set out in s. 718 and 718.1 and 718.2 to determine a reasonable sentence in all the circumstances. The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In addition to the principle of restraint set out in 718.2(e), as explained in the above quote from Ladue , I must also consider both the aggravating and mitigating factors and sentences imposed for similar offenders and similar offences. [ 53 ] The purpose of sentencing is to contribute to respect for the law and the maintenance of a just and peaceful society by imposing just sanctions with the objectives of denouncing conduct, deterring offenders and others, rehabilitating offenders, making reparation, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community and, where necessary, separating the offender from society in order to protect the public.

Analysis [ 54 ] The gravity of the offence is significant. Our homes are our sanctuaries and those who choose to enter a home to commit theft commit one of the few offences that carry a maximum life sentence. This reflects the very high societal value we place on the sanctity of our personal spaces. However, this offence is not aggravated by the home having been occupied. It was impulsive and unsophisticated and occurred in the middle of the day. [ 55 ] The degree of responsibility or moral culpability of these offenders is reduced by the unique circumstances of their aboriginal background and experiences.

As this matter proceeded, the court was clear in advising both Jason and Louie that they needed to make serious changes in their lives and to remain clean and sober or there would be no option but to impose a jail term. [ 56 ] Their criminal histories are serious and lengthy and could not be ignored. In particular, although now dated, Jason has a prior conviction for break and enter. In the spirit of the First Nations Court, the court advised them that what would happen to them was in their hands.

They could choose to continue abusing substances and ignore their emotional issues and go to jail or they could take this as an opportunity to heal and achieve sobriety. If they chose the latter and succeeded, the court could and would impose a community- based disposition. [ 57 ] They have each now been back in the community since mid-December of 2012. There have been no further offences. They have been generally compliant with their bail terms. They have remained clean and sober. They have made positive strides forward in their emotional health and are demonstrating a commitment to their healing.

They are leading pro-social lives. [ 58 ] They entered early guilty pleas and have accepted responsibility for their offending and are remorseful for their crime. They are prepared to make reparation to the victim family by paying for the damage done to the door and are prepared to participate in victim- offender reconciliation. They are also willing to repay the community through volunteer work. [ 59 ] I find they have been specifically deterred and their rehabilitation is well underway.

I am thankful I can find at this time that they are likely to continue to comply with the terms to be imposed and that this will serve to protect the public. There is no longer any need to separate them from society. [ 60 ] There are few cases involving aboriginal offenders who have committed a break and enter in these circumstances. Most involve offences of violence and occupied residences. Counsel did not provide the court with specific authorities, but the range suggested by Ms. Riddle for the Crown reflects the generally accepted range for such offences.

However, suspended sentences and shorter jail sentences have also been imposed depending, of course, on the individual circumstances of each case. [ 61 ] Denunciation of such a serious offence and general deterrence of others must be given weight. However, meeting this objective does not require the imposition of a period of incarceration. A community-based disposition is capable of being a symbolic statement condemning an offender's conduct by its length and restrictions on liberty.

Similarly, such a penalty can also serve to deter others. [ 62 ] A truly fit and proper and proportional sentence is one which will be seen as contributing to respect for the law from the perspective of aboriginals as well as properly informed and reasonable members of the dominant culture. Furthermore, the rehabilitation of these First Nations men will serve to promote a just, peaceful, and safe society.

I find it is not necessary to incarcerate these offenders to meet the principles of sentence and that a probationary term is reasonable in these circumstances and will serve as a just and remedial sanction reflective of the principle of restraint as it applies to aboriginal offenders. [ 63 ] Did you get any of that? [ 64 ] THE ACCUSED JASON LEWIS: I was going to ask you if you want some water. You sound sort of dry. [ 65 ] THE COURT: Okay. So I have to move on to the terms. [ 66 ] So each of you will receive credit for 17 days' time served plus one day.

You will then be placed on probation for a period of three years. So, in total, you have to understand that is four years, more than four years that you will have been bound by terms of the court. I am hopeful that you will come back before me before that term is complete and ask me to terminate it because your rehabilitation is complete. You are continuing to do well. As I explained to you, I have to treat any breaches of this order with some seriousness and that might result in a period of jail.

I do not expect that is going to happen. [ 67 ] So the terms will be you will keep the peace and be of good behaviour and appear before the court when required to do so by the court.

[ 68 ] You will report -- and do you want to do that by the end of tomorrow rather than today? I think it is going to take the court some time to get this all put together. [ 69 ] So you will report in person by no later than 4:00 p.m., March 27th, 2014, at 100, 233 West 1st Street in North Vancouver and report thereafter as and when directed. [ 70 ] You will provide your current residential address to the probation officer and not change that without their prior written permission. [ 71 ] All right.

You will abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed. [ 72 ] You are not to attend to the 500 block of West 23rd Street, North Vancouver. You will make restitution, and this is $500 for each offender, in the amount of $500 through the clerk of the court to the benefit of Lindy Belsham.

Now, how long do you want, each of you, to make the $500 restitution? [DISCUSSION RE TIME TO PAY RESTITUTION] [ 73 ] THE COURT: Okay.

So if we say within the first 12 months? [ 74 ] THE ACCUSED JASON LEWIS: Yes. [ 75 ] THE COURT: Okay, within the first 12 months of your period of probation. [ 76 ] You will attend for, accept, and complete any counselling to include but not limited to substance abuse management, trauma counselling, parenting courses, or life skills. [ 77 ] You will attend to any counselling with the Indian Residential School Survivor Society and complete same to the satisfaction of your probation officer. [DISCUSSION RE TREATMENT PROGRAMS] [ 78 ] So you will attend for, accept, and complete any residential treatment programs as directed by your probation officer in consultation with your drug and alcohol counsellor and complete same to the satisfaction of your probation officer. [ 79 ] You will participate in any victim-offender reconciliation program with the North Shore Restorative Justice Society and with the consent of the victims of the break and enter. [ 80 ] You will enter into and complete any healing plans with the Yúustway Health Services of the Squamish Nation. [ 81 ] You will attend to the Vancouver Aboriginal Transformative Justice Services Society as directed by your probation officer. [ 82 ] You will attend to any Forensic Psychiatric Outpatient Clinic for any assessment or treatment at the direction of your probation officer, and Jason, just so you know, that is actually for Louie, although you might also want to find out if there is anything that you should know about in terms of your head injuries.

All right. [ 83 ] You will perform 150 hours of community work service, that is each offender, for the benefit of the Squamish Nation or the Vancouver Friendship Centre or any other -- [ 84 ] THE ACCUSED JASON LEWIS: Sorry, how many did you say? [ 85 ] THE COURT: 150. [ 86 ] THE ACCUSED JASON LEWIS: Each? [ 87 ] THE COURT: Each.

Okay, so that means, in fact, the likelihood is, what I am hoping is, that when you are at the Friendship Centre -- [ 88 ] THE ACCUSED JASON LEWIS: Yes. [ 89 ] THE COURT: -- and you are engaged in that, that that is going to count; that when you come and work -- say, you go to the Shaker Church and do some work there, that is going to count. [ 90 ] THE ACCUSED JASON LEWIS: Okay. [ 91 ] THE COURT: Okay. So you are not walking dogs for the SPCA for 150 hours, but rather you are doing good works around your community. [ 92 ] THE ACCUSED JASON LEWIS: All right. That sounds better. [ 93 ] THE COURT: Okay.

[ 94 ] THE ACCUSED JASON LEWIS: Yes. [ 95 ] THE COURT: So, for example, up in Bella Bella, we used to have courts-and-cops-against-the-kids basketball game and it was usually the offenders who were the refs and that counted to their community work service. [ 96 ] THE ACCUSED JASON LEWIS: Okay. [ 97 ] THE COURT: Okay. So that is the idea, is that you are going to give back, but to your own community.

All right. [ 98 ] You are to seek and maintain employment or pursue any educational, vocational, or job skills training and complete same to the satisfaction of your probation officer. [ 99 ] You will attend to the Warriors Against Violence Program as directed by your probation officer. [ 100 ] You will provide for the care and support of your dependants. [ 101 ] With respect to the two other charges regarding Jason, that sentence will be one day with probation for 12 months concurrent to the probation just imposed. [ 102 ] The terms will be you keep the peace and be of good behaviour. [ 103 ] THE ACCUSED JASON LEWIS: What is that one for? [ 104 ] THE COURT: That is the shoplifting and the assault police officer. [ 105 ] THE ACCUSED JASON LEWIS: Okay. [ 106 ] THE COURT: It is just going to run along with the other one. [ 107 ] So you will keep the peace and be of good behaviour. [ 108 ] Report by no later than 4:00 p.m., March 27th, 2014, 100, 233 West 1st Street, et cetera; thereafter as and when directed by the probation officer. [ 109 ] You will provide your current residential address; same term as on the other one. [ 110 ] You are not to attend to any Sears store or the Tap House Bar and Restaurant in West Vancouver. [ 111 ] You are to have no contact with Bryson LaLeune except to provide a letter of apology through your probation officer, and you will prepare a letter of apology within 30 days to Bryson LaLeune and to Constable Colgan to the satisfaction of your probation officer. [ 112 ] Now, I think there is going to have to be a DNA on the B and E.

Is it not primary? [ 113 ] MR. WALSOFF: I think it is primary. [ 114 ] THE COURT: Yes. Okay. So each of you will have to provide your DNA and that will be to the North Vancouver RCMP on any Tuesday or Wednesday at 1:30. Want a month to get that done? [ 115 ] THE ACCUSED JASON LEWIS: Sure. [ 116 ] THE COURT: Okay, and so by no later April 30th, 2014. [ 117 ] All of these predate the victim fine surcharge. Asking it be waived, Mr. Chambers? [ 118 ] MR. CHAMBERS: I am. [ 119 ] THE COURT: Asking it be waived? [ 120 ] MR.

WALSOFF: Yes. [ 121 ] THE ACCUSED JASON LEWIS: For what? [ 122 ] THE COURT: The victim fine surcharge. [ 123 ] MR. WALSOFF: Victim fine surcharge. [ 124 ] THE ACCUSED JASON LEWIS: Oh, okay, sorry. [ 125 ] MR. WALSOFF: Your Honour, sorry, the probation on the other two matters was for how long? [ 126 ] THE COURT: Twelve months. [ 127 ] MR. WALSOFF: Twelve months. [ 128 ] THE ACCUSED JASON LEWIS: So is there going to be a period of time with the probation that you are going to say to come back to get the rest terminated, or you just come back at --

[ 129 ] THE COURT: Well, you are going to be bound for at least a year, okay, but after a year, I did not put a curfew because neither of you have been bound by a curfew over the last while.

Most of these terms are, in the fancy language of sentencing, they are to pay back your community, they are to restrict your liberty, they are to ensure your ongoing rehabilitation. [ 130 ] THE ACCUSED JASON LEWIS: What are most of these programs that you have got, like the Warrior thing? [ 131 ] THE COURT: The Warriors Against Violence is a once-a-week program, I think they hold it at the Friendship Centre. [ 132 ] THE ACCUSED JASON LEWIS: Okay. [ 133 ] THE COURT: Okay, and it is just you sit around, as I understand it, it is a fairly relaxed program, but it is pretty good and I think you learn at least some things about the history of the assimilation and contact which is an important thing to learn. [ 134 ] THE ACCUSED JASON LEWIS: Yes. [ 135 ] THE COURT: And the next time a police officer stops you, give him a quote from Gandhi and see what they do. [ 136 ] THE CLERK: Sorry, Your Honour, I did not see how long it was that they had to complete the community work service hours in? [ 137 ] THE COURT: Oh, we will say -- do you want to get them out of the way, but you want -- you can ask me for an extension. [ 138 ] THE ACCUSED JASON LEWIS: No, I will get them out of the way. [ 139 ] THE COURT: Okay, so shall we say within the first year, you will get those done. [DISCUSSION RE COMMUNITY WORK SERVICE HOURS] [ 140 ] THE COURT: Good luck.

Again, we are going to miss seeing you again. [ 141 ] THE ACCUSED JASON LEWIS: Thank you. [DISCUSSION RE OTHER INFORMATIONS AND COUNTS] [ 142 ] THE COURT: The clerk is just asking about Counts 2, 3, and 4 of the break and enter Information. [ 143 ] MS. ASHTON: Yes, stay of proceedings, thank you. [ 144 ] MR. WALSOFF: And there is also 58845-3-A, on Louie Lewis. [DISCUSSION RE INFORMATION 58845-3-A] [ 145 ] MS. ASHTON: Your Honour, Crown is directing a stay of proceedings on that. He has got enough on his plate, I think, for the next three years. [REASONS FOR SENTENCE CONCLUDED]