R. v. Arnet, 2023 BCPC 52

Citation: R. v. Arnet 2023 BCPC 52 Date: 20230307 File Nos: 43144-1 and 43144-2C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JUSTIN WILLIAM ARNET REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: J. Petty Counsel for the Defendant: D. Ferguson Place of Hearing: Campbell River , B.C. Date of Hearing: January 19, 2023 Date of Judgment: March 7, 2023

INTRODUCTION [ 1 ] Mr. Arnet has pled guilty to manslaughter and robbery. A sentencing hearing was held and the Court has had the benefit of a Gladue Report, victim impact statements, sentencing materials and submissions of counsel. [ 2 ] Counsel agree that a custodial sentence is warranted, however, they depart on the appropriate length of the sentence. The task for this Court is identify a sentence that is fit, fair and reasonable. CIRCUMSTANCES OF THE OFFENCES Manslaughter – 43144 [ 3 ] On October 15, 2020, the victim, Mr. Dool, was 59 years old and he had been out drinking in downtown Campbell River.

About 10:30 p.m., he was inside the foyer of a bank building drinking a beer and when he finished his beer he walked outside onto 13 th Avenue. [ 4 ] Also out that evening was Mr. Arnet, who was accompanied by two others. At some point, Mr. Arnet’s group encountered Mr. Dool. Mr. Arnet and one other in his group became angry at Mr. Dool because they felt he had directed a racist comment to them. This led to a confrontation that was captured on CCTV. [ 5 ] As for the confrontation, Mr. Arnet pushed Mr. Dool and the two spoke for approximately 35 seconds. Mr. Dool then produced a knife and he motioned toward Mr.

Arnet with it and he responded by pushing the knife aside several times. After approximately 25 seconds, Mr. Arnet punched Mr. Dool in the face and he fell to the ground landing on the roadway at the edge of the sidewalk. [ 6 ] Once Mr. Dool was on the ground, Mr. Arnet delivered several kicks and punches to the area of Mr. Dool’s head. Mr. Arnet then stepped away and circled back, at which point he resumed kicking and punching Mr. Dool. This occurred on three occasions. Ultimately, Mr. Arnet and Mr. Arnet’s associate moved Mr. Dool, who was motionless, onto the sidewalk and against a building. Then and while Mr.

Dool was seated and leaning against the building, Mr. Arnet delivered further blows. Thereafter he left the area and he went to nearby gathering place, where staff noted signs suggesting that he was intoxicated. [ 7 ] As for Mr. Dool, he briefly remained laying on the sidewalk, he then got to his feet but fell to the ground striking his head. Shortly thereafter, emergency personnel responded and transported Mr. Dool to the hospital. Sadly, Mr. Dool passed away a few days later. An autopsy revealed bruising and abrasions to Mr. Dool’s head, torso and limbs.

It was also observed that he had internal bruising to the right side of his neck and a fractured hyoid bone. Mr. Dool’s death was attributed to head trauma. [ 8 ] Mr. Arnet was arrested on January 28, 2021 and interviewed. During the interview, he was shown CCTV footage capturing the events and on seeing them, Mr. Arnet became emotional. He expressed how sorry he was and stated he was sorry to Mr. Dool and his family. He also expressed he felt overwhelming guilt. Victim Impact [ 9 ] Victim impact statements were received from Mr. Dool’s family, his partner and a close friend. All speak to Mr.

Dool’s unique special qualities and his compassion. They all comment in their own way on how Mr. Dool’s death has created a huge void and much sadness. [ 10 ] Mr. Dool’s partner described struggles with anxiety and focussing. She feels guilt, she is gripped with grief, her sense of security is shaken and she has difficulty passing the area where the assault occurred. [ 11 ] Cheryl Campbell, Mr. Dool’s sister, has a broken heart. She feels angry and sad. She misses her brother and she has difficulty sleeping. She fears for her safety and her heartaches. [ 12 ] Brian Schoeder has been a friend of Mr.

Dool’s for 30 years and he is angry and sad over what he described as the pointless loss of Mr. Dool. He described the loss of Mr. Dool as having shaken his sense of community and sense of security. [ 13 ] In sum, the letters describe how wonderful and unique Mr. Dool was and how he positively impacted all. They also describe understandable feelings of sadness, anger and a sense that their community is unsafe. Robbery – 43141-2C [ 14 ] Early in the morning of January 23, 2021, Ms.

Cook and another woman were sleeping outside the Campbell River Library in downtown Campbell River. [ 15 ] At approximately 6:30 a.m., Mr. Arnet and another male approached the two women as they slept. Mr. Arnet was carrying a two- litre bottle of an alcohol cooler and the male was carrying a baseball bat. Mr. Arnet woke Ms. Cook by brandishing the bottle over her head while the other male stood nearby holding the bat and occasionally using it to strike things on the ground. [ 16 ] The women appeared startled and CCTV captured Mr. Arnet making a punching motion toward Ms. Cook.

The women remained on the ground and they spoke with Mr. Arnet and the other male. At one point, Mr. Arnet got very close to Ms. Cook and after a few moments, he punched her in the face. Thereafter, Mr. Arnet took some of Ms. Cook’s belongs. There was a brief struggle and after lingering for a bit, Mr. Arnet and the other male left the area. [ 17 ] The police were notified and on speaking with Ms. Cook, they observed she had a bloody nose and lip. A picture was filed at the sentencing hearing confirming her injuries. [ 18 ] In terms of interactions leading up to the offence, Ms.

Cook explained that prior to the incident, she had sold alcohol to Mr. Arnet

and he approached her at the time of the offence wanting his money back. It was Mr. Arnet’s perspective that Ms. Cook had taken items from an acquaintance earlier in the evening and he had sought her out with the intention of recovering them. [ 19 ] Stolen from Ms. Cook was her cellphone and backpack containing her birth certificate and a power pack. Victim Impact [ 20 ] In Ms. Cook’s impact statement, she described chronic back pain. She explained that her nose was broken when she was punched. She states she feels vulnerable, afraid and that she has nightmares. MR. ARNET’S PERSONAL CIRCUMSTANCES [ 21 ] Mr.

Arnet is 32, and he was born in Campbell River. His mother, who was 18 when she became pregnant with Mr. Arnet, is a member of the Kyuquot First Nation and his father is a member of Michel First Nation, which is blended Iroquois, Cree and Métis. [ 22 ] Mr. Arnet’s parents separated prior to his birth. The separation was due to substance misuse, his father’s criminality and his father’s violent behaviour. Mr. Arnet stayed with his mother and their relationship was fractious and dysfunctional, with Mr. Arnet suffering mental and physical abuse. [ 23 ] Mr.

Arnet’s maternal grandparents have experienced traumas, they have struggled with alcohol and there has been violence in their relationship. In terms of trauma, Mr. Arnet’s grandmother went to Indian Day School and it is reported she spent a year tied to a bed at Nanaimo Indian Hospital. Mr. Arnet’s grandfather was raised in the foster system and it is believed that he was an Indian Residential School Survivor. [ 24 ] As indicated, Mr. Arnet’s relationship with his mother was difficult and when he was 12 years old, he resisted house rules and he became increasingly oppositional and defiant. Ultimately, Mr.

Arnet’s mother sent him to live with his uncle and from there, he moved from family member to family member. As he aged, Mr. Arnet started working and abusing drugs and alcohol, which led to him living a transient life style. [ 25 ] Mr. Arnet has no dependents. He has been romantically involved since 2020. Although he is in custody, he remains in regular contact with his romantic interest. While in custody, there were Covid issues and staffing problems, and as a result, Mr. Arnet has had limited access to Indigenous Elders and rehabilitative programs. [ 26 ] In terms of education and employment, Mr.

Arnet attended several schools and this lack of continuity contributed to him leaving school in grade 10. As for employment, he has worked in commercial fishing, construction and forestry. Mr. Arnet’s aspirations include becoming a seafood broker and opening a store. He also wants to build and rent out cabins to tourists. [ 27 ] Mr. Arnet’s criminal record starts in 2014. He has convictions for theft, breach of court orders, break and enter, and assault with a weapon, for which he received the equivalent sentence of 102 days in custody. This suggests that the offence was not particularly serious. Of note is Mr.

Arnet’s last substantive offence was in 2014. [ 28 ] Several letters were filed on Mr. Arnet’s behalf. These letters speak to Mr. Arnet’s kindness and of the following examples; ensuring an elderly person had sufficient firewood, attending at an elderly person’s home early in the morning and making a fire to ensure they were warm, taking an ill community member’s dog for walks and performing yard work and gardening for an incomplete paraplegic. [ 29 ] A letter from Mr. Arnet’s brother speaks to Mr. Arnet’s qualities and highlights the challenging and difficult upbringing endured by Mr. Arnet.

The brother writes: Growing up Justin and I endured traumas, such as witnessing and falling victim to domestic violence from our mother’s (Doreen) partner, child neglect, instability, exposure to alcohol and addictions, emotional, physical and verbal abuse and an over all toxic environment. [ 30 ] The Gladue report prepared noted that Mr. Arnet is an intergenerational survivor of the Indian Residential School system. The author based their conclusion on Mr. Arnet’s familial and community attendance at residential schools.

Notably, one of the schools is one where there was significant sexual abuse. [ 31 ] The Gladue report writer observed that a number of factors affecting Aboriginal people were present in Mr. Arnet including family breakdown, emotional, verbal and physical abuse, unresolved trauma, maladaptive strategies impacting his sense of self-worth, interpersonal relationships and functional abilities. Additionally, low education, marginalized vocations, dislocation from paternal Aboriginal community and traditional supports.

All of which has resulted in a loss of cultural identity, language, values, culture and ancestral knowledge. [ 32 ] Finally, in terms of Mr. Arnet’s perspective as to his involvement in the justice system, he informed the Gladue report writer that it was related to unresolved traumas, lack of coping, general life skills, poor judgement, addictions and criminal associations. SENTENCING POSITIONS The Crown [ 33 ] For the death of Mr. Dool, the Crown seeks a seven to eight year custodial term and 18 months consecutive for the robbery. Cumulatively, an 8½ to 9½ year term of custody.

In support, the Crown highlights the circumstances of the assault on Mr. Dool, including Crown’s position that Mr. Dool was vulnerable at the time. The Crown argues Mr. Arnet’s choices and actions warrant a sentence with a heightened degree of denunciation and deterrence. As for Ms. Cook, the Crown points out she was vulnerable by virtue

of her Indigenous status and living on the streets, thus demanding a sentence that places weight on denunciation and deterrence. Counsel for Mr. Arnet [34] Counsel argues that a global four-year jail sentence, less the time Mr. Arnet has served in custody. In support, counsel referencesMr. Arnet’s minimal criminal history, his reduced culpability owing to his experiences as an Indigenous person and the mitigatingfactors. Counsel urges the Court to recognize Mr. Arnet’s rehabilitative prospects and highlights the principle of restraint.

PURPOSE AND PRINCIPLES OF SENTENCING [35] A Court tasked with imposing a sentence must consider the purposes and principles of sentencing as set out in s. 718 to s.718.2(

f) of the Criminal Code.

Section 718 – Sentencing Objectives [36] As per

section 718, the purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful andsafe society by imposing a sentence that is focused on one or more sentencing objectives. In my view, the violence present in bothoffences requires a sentence that denounces and deters. In support, Mr. Arnet continued to assault Mr. Dool when he was clearlyincapacitated and that his punch to Ms. Cook was unprovoked and occurred when she was seated and in a vulnerable position. [37] Further to the objectives of denunciation and deterrence, I am satisfied that Mr.

Arnet’s rehabilitation must not be overlooked.This is because he is relatively young, he has a minimal record, he has support in the community and from the letters filed, I am satisfiedthat his offences were out of character and his is generally a kind person who typically helps others. FUNDAMENTAL PRINCIPLE

Section 718.1 [38] Proportionality is a fundamental principle of sentencing. In R. v. Ipeelee, 2012 SCC 13, LeBel J., commented on this principle atpara 37: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity ofthe offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence.

Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [39] Further commentary is found in, R. v. Lacasse, 2015 SCC 64, where, Wagner J., stated at paragraph 12: [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, theheavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences,but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above,both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. … [40] The importance of individualization to proportionality was recently underscored in R. v. Parranto, 2021 SCC 46, where the Courtreferenced Lacasse and commented at para.12: Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, eachoffence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimesdemands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflectsthe gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58). [41] In the instant case, Mr. Arnet’s offences are serious. Specifically, through his unlawful act, he caused the death of anotherhuman being.

Additionally, and in the course of stealing from Ms. Cook, a vulnerable person, he punched her, without provocation, inthe face. I do observe and without minimizing the impact of the punch, in comparison to the wide spectrum of violence committedduring a robbery, the violence in this matter is toward the lower end of the scale. [42] Determining Mr. Arnet’s level of moral culpability is not a basic task. At first blush and simplistically, Mr. Arnet made thedecision to assault Mr. Dool and he chose to assault Ms. Cook and steal from her. Such a narrow focus ignores Mr.

Arnet’s personalfactors and events that pre-shaped his decisions and actions. To ignore these would be an error. [43] Determining Mr. Arnet’s moral culpability requires the Court to consider his unique circumstances, particularly the unique

systemic factors that have impacted him as an Indigenous person and consider if they played a

part in his offending. The relationshipbetween systemic factors as they relate to an Indigenous offender’s moral culpability is highlighted in Ipeelee, at para. 73: [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as “the uniquesystemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct”(para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct.Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limitedoptions for positive development. While this rarely — if ever — attains a level where one could properly say that their actions werenot voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50,after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such a childhoodand youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamentalprinciple of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender… [44] The Gladue report and the letter from Mr.

Arnet’s brother satisfies me that the intergenerational trauma he experienced,combined with the impact of colonialism, influenced his upbringing such that he did not receive support, supervision or guidance. I amsatisfied he witnessed violence and substance abuse and as result, he has few coping skills and low self-esteem. In my view, theseexperiences pushed him to alcohol and drug abuse and impacted his judgment. With this in mind, I conclude that Mr. Arnet’s moralculpability was reduced when he offended against Ms. Cook and Mr. Dool. ADDITIONAL SENTENCING PRINCIPLES Aggravating and mitigating factors-

Section 718.2 (a) [45] In terms of the manslaughter, it is aggravating that Mr. Arnet continued his attack despite Mr. Dool being incapacitated. TheCrown argued Mr. Dool was vulnerable because of his age and because he was under the influence of alcohol when he was assaulted. Iappreciate Mr. Dool was 59 and he had been drinking at the relevant time; however, there is no evidence as to the amount he had to drinkor the impact of the alcohol, nor is there any evidence regarding how Mr. Dool’s age impacted his abilities. For these reasons, I cannotconclude that he was vulnerable. In contrast, Ms.

Cook was an Indigenous woman who was living on the streets and I have no hesitationin concluding that she was vulnerable. [46] I do not see Mr. Arnet’s criminal record as aggravating. This is because it is dated. It contains only one entry for violence andlastly, I recognize how Colonialism and government policies contributed to his record. [47] As for mitigation, Mr. Arnet’s guilty pleas are substantially mitigating. He has saved the state the expense associated with aprosecution. His pleas symbolize a degree of remorse and signal a preparedness to accept the consequences for his offences.

Lastly, andimportantly, Mr. Arnet’s plea has saved the family from having to re-visit the trauma of Mr. Dool’s passing. It also saved Ms. Cookfrom coming to court and to testify. [48] In further mitigation, I note Mr. Arnet’s extreme remorse as evidenced by his emotional breakdown and expressions of sorrowwhen he was interviewed by the police. I also observe the Gladue report’s comments: Justin expressed significant remorse for his involvement in the current matters before the court, and specifically to the victim, his family,and police involved. Similar sentences for similar offenders and similar offences -

section 718.2 (b) [49] Counsel referred the Court to several authorities and I have read them. The cases are of assistance in that they indicate a rangeand applicable principles, nevertheless, I am mindful that sentencing is an individualized exercise, wherein the unique circumstances ofeach offender is highly relevant. I am also mindful that ranges are guidelines and circumstances may justify a sentence that falls above orbelow the range. [50] The sentencing range for the offence of manslaughter is wide.

There is no minimum sentence and this results in a range ofsentence from suspended sentence to life imprisonment. As stated in R. v. Pop, 2013 BCCA 160, “Manslaughter is an offence that canencompass very different factural matrixes; from near accident to near murder.” [51] Perhaps the best indication of the broad range of sentences for manslaughter are the various expressions as to the range that isreferenced by judicial commentary. [52] In R. v. Gillies, (BC CA), [1998] B.C.J. No. 1153 (BCCA), the range for manslaughter was expressed as fourto six years. In R. v. Plowman, 2015 BCCA 423 and R. v.

Engebrestsen, 2016 BCCA 182, the range without unusual or specialcircumstances is four to 15 years. In R. v. Pop, 2013 BCCA 160, Madam Justice Bennett at para. 25, commented on the range for youngAboriginal offenders with no record: [25] A number of cases were cited to the sentencing judge and to this Court to establish a range of sentence for a young Aboriginaloffender with no prior record who committed manslaughter in aggravating circumstances.

While each case will depend on its uniquecircumstances, the range appears to be generally between three and eight years’ imprisonment with sentences of one and ten years at theouter ends. As noted, sentences in manslaughter cases are very fact specific. [53] In terms of the cases submitted, I note the following: [54] In Jack, 2008 BCCA 437, the offender’s appeal of a three-year sentence that was imposed after he pled guilty to manslaughter

was dismissed. The circumstances involved a history that caused animosity within a common circle of individuals. The offender wasencouraged to beat the deceased who was part of the circle. The deceased was lured out of a residence and the offender beat and kickedthe deceased who offered no resistance. The offender was grossly intoxicated at the time of the offence. The decision provides littleinformation about the offender. [55] In Auckland, 2018 BCCA 171, the offender appealed an effective 31-month sentence imposed after she pled guilty tomanslaughter.

The circumstances involved the offender stabbing her common law spouse four times. The offender was Indigenous andat the time of sentencing, she had significant health issues including HIV and stroke related challenges requiring extended care. Indismissing the appeal, the Court observed the sentence was not excessive for a manslaughter that was closer to near murder. Robbery [56] Like manslaughter, a robbery can be committed in a multitude of ways and therefor identifying a range is difficult.

In Bush, 2006BCCA 250, the offender’s appeal of a two year sentence imposed for a robbery purse snatching that cut the victim’s lip was dismissed.The offender was 39 with 26 convictions, including two convictions for robbery. He was not an Indigenous offender. In R. v. Ruckman,2003 BCCA 456, the offender’s appeal of a three year sentence imposed after he was convicted of robbery was dismissed. The offenderhad a prior criminal record, he was not Indigenous and he slashed at the victim with a knife during the robbery. R. v. Jimmie, 2009BCCA 215, involved a robbery during a purse snatching where the victim was 81.

The offender was Indigenous, he had 39 convictions,including ten offences for violence. His appeal of a 2 year plus one day sentence was dismissed. [57] In Ali, 2022 BCCA 83, Justice Dewitt-Van Oosten observed the range for robbery with overt violence, including the use of aweapon, is often stated as between two and nine year’s imprisonment.

The Justice then observed at para. 3, that ranges are not bindingand judges have the discretion to go above or below the range depending on the offender’s circumstances. [58] In Thompson, the offender’s sentence appeal was allowed and the Court substituted a three-month sentence for a robbery pursesnatching where the victim was targeted. The offender did not have a criminal record, he was not Indigenous and he had made substantialrehabilitative strides. [59] In Marks, a 12-month sentence was upheld. The offence involved the use of an imitation handgun during the robbery of a gasstation.

The offender was 19 at the time of the offence and he had fallen in with the wrong crowd as a youth. At the time of sentencing,he had made significant efforts to turn his life around. Also noteworthy, is that he had been on strict bail conditions, including a curfewfor three years. An offender should not be deprived of liberty if less restrictive sanctions are appropriate -

section 718. 2(d) [60] Sections 718.2(

d) and 718.2(

e) are often referenced as a codifying the principle of restraint. This principle reflects therequirement that a sentencing court impose jail only as a last resort and if jail is required that lightest jail sentence that is reasonable beimposed: R. v. Bosco, 2016 BCCA 55 at para. 35. Aboriginal Offenders -

section 718.2(e) [61] The purpose of

section 718.2 (

e) is to reduce the overrepresentation of incarcerated Aboriginal people through the use ofrestorative sentencing. The law is clear, sentencing of an Aboriginal offender requires a judge to consider the systemic and backgroundfactors that may have contributed to bringing an offender before the Court. The Court must then consider the appropriate sentencingprocedures and sanctions that maybe appropriate given the offender’s heritage: R. v. Gladue, [1991] 1 S.C.R. 688. [62] Madam Justice DeWitt-Van Oosten, in R. v. Billing, 2017 BCSC 1107, commented on the application of

section 718.2(e), and atparas. 46 – 53, she stated: [46]

Section 718.2(

e) of the Code provides that when imposing sentence, all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered, with particularattention to the circumstances of Aboriginal offenders. [47] In R. v. Ipeelee; Ladue, 2012 SCC 13, the Supreme Court re-affirmed that s. 718.2(

e) is a "remedial provision designed toameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges tohave recourse to a restorative approach to sentencing": at para. 59, citing R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [48] In sentencing an Aboriginal offender, the Court must consider: (

a) the unique systemic or background factors which may haveplayed a

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

b) the types of sentencing procedures and sanctionswhich may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage orconnection: Ipeelee, at para. 59. [49] When considering "unique systemic or background factors", the Court must take judicial notice of: [60] … such matters as the history of colonialism, displacement, and residential schools and how that history continues to translateinto lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course highlevels of incarceration for Aboriginal peoples: Ipeelee, at para. 60. [50] The Court must also consider any "individualized information" about the accused person as an Aboriginal offender: Ipeelee, atpara. 60. [51] Paying close attention to both systemic and individualized factors allows the Court to better achieve a sentence that isproportionate to the gravity of the offence and the degree of responsibility of the offender.

"Many Aboriginal offenders find themselvesin situations of social and economic deprivation with a lack of opportunities and limited option for positive development … the reality is

that their constrained circumstances may diminish their moral culpability": Ipeelee, at para. 73. [52] It is not necessary that the offender establish a "causal link" between these background factors and the index offence before theremedial impact of s. 718.2(

e) is brought to bear: Ipeelee, at para. 81. This is true even for "serious or violence offences": Ipeelee, atpara. 84. "Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they providethe necessary context to enable a judge to determine an appropriate sentence": Ipeelee, at para. 83. [53] Sentencing judges have a positive duty to apply s. 718.2(

e) in all cases: Ipeelee, at para. 85. A failure to do so constitutes anerror that justifies appellate intervention: Ipeelee, at para. 87. [63] In considering the matter, I take judicial notice of the history of Colonialism, displacement, and residential schools, and how thathistory translates into lower education, lower incomes, high unemployment, and high rates of substance abuse and suicide, all of whichcontribute to high levels of incarceration for Aboriginal peoples. [64] Finally, I am mindful that the sentencing of an Aboriginal offender does not automatically result in a reduced sentence: R.v.

Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207. I also acknowledge the general proposition that the more violent the offence theless difference there will be in the sentences of Aboriginal and non-Aboriginal offenders. DECISION MANSLAUGHTER [65] Dealing with manslaughter, Mr. Arnet’s use of excessive violence needs to be denounced and deterred. I say this recognizing andappreciating the impact of the racial comment and the production of the knife, however, Mr. Arnet went too far. Simply, he continued toinflict violence after Mr.

Dool was incapacitated and he did so when he had an opportunity to walk away. [66] Despite the need for denunciation and deterrence, consideration must be given to Mr. Arnet’s rehabilitation. In this regard, I note,the passage of time since he has been convicted of a substantive offence. I also note the support he has from family and friends. Lastly, Iobserve his acts of kindness and support. All of this satisfies me that Mr.

Arnet is a person who can be rehabilitated, and if rehabilitationis achieved, not only will he benefit but so will the community. [67] In considering an appropriate sentence, I acknowledge the seriousness of Mr. Arnet’s offence and his reduced moral culpability.In this regard, and by virtue of his Indigenous background; as a young person, he lost all meaningful opportunities to connect with hisculture and relations. In addition to suffering intergeneration trauma, he received little guidance while growing up, and as such, he did notdevelop the skills typically acquired through a stable up bring.

Instead, he was neglected, abused, and exposed to violence and substanceabuse. This is the context of the decisions Mr. Arnet made on October 15, 2020. [68] The authorities satisfy me that the range for manslaughter in the circumstances of an Indigenous offender with a minimal recordand not involving a weapon is generally three to eight years. [69] When I consider the sentence suggested by the Crown, I am of a view that it is not proportionate in that it fails to consider Mr.Arnet’s reduced culpability.

I am also of the opinion that the amount of denunciation and deterrence, necessitated in this case, is slightlyattenuated by the racial comment and the production of a knife. Finally, I conclude that to impose the sentence suggested by the Crownprolongs Mr. Arnet’s separation from family and community and will likely extinguish his rehabilitative prospects. [70] Based on the materials filed, and the authorities, in conjunction with the purposes and principles of sentencing, I am satisfied thata four-year sentence is appropriate.

In my view, a sentence of this length achieves the requisite degree of denunciation and deterrence, itsupports Mr. Arnet’s rehabilitation, it balances the seriousness of the offence with Mr Arnet’s degree of responsibility and it reflects theaggravating and mitigating factors. [71] Mr. Arnet has been in custody for 760 actual days and therefore he is entitled to a credit of three years, one month and threeweeks. As such, and given the sentence of 48 months, he has a balance of 10 months, one week to serve. ROBBERY [72] In considering the robbery, I am not satisfied Mr. Arnet approached Ms.

Cook with the specific intention to rob her or assaulther; rather, as the interaction unfolded he ultimately did just that. Although, the offence was serious, I do observe that it was impulsive. Ialso observe that his culpability was reduced. [73] In my view, a sentence of 18 months would be disproportionate.

In this regard, I observe the robbery was not planned, that it wasimpulsive and although violent, the violence was not the type of violence typically noted for robberies wherein a sentence of 18 monthsis imposed. [74] As for the suggestion that the sentence for the robbery be globally considered within the context to the manslaughter sentence, inmy view, such an approach, would not properly distinguish the two offences. [75] With the above in mind, and after considering all of the facts and circumstances, I impose a six-month custodial sentence, to beserved consecutively to the manslaughter sentence.

Thereafter, Mr. Arnet will be bound by probation for 24 months. [76] In imposing sentence, I have considered the totality principle and in my view, the combined sentences are not overly long orharsh and are likely to support rehabilitation rather than extinguish it. [77] Finally, my purpose in imposing probation is to provide further rehabilitative assistance to Mr. Arnet, while also providing him

an opportunity to give back to the community. PROBATION TERMS AND CONDITIONS [ 78 ] You must comply with the probation order for a term of 24 months.

The conditions are: • You must keep the peace and be of good behavior. • You must appear before the Court when required to do so by the Court. • You must notify the Court or your probation officer in advance of any change of name or address and promptly notify the Court or the officer of any change in employment or occupation. • Within 72 hours of your release from custody, you are to report by telephone to a probation officer at and thereafter you must report as and when directed, including in person reporting. • You are to have no contact directly or indirectly with Maxine Cook. • You are to attend and participate in all counselling and programs that maybe directed by your probation officer.

This can include but not limited to: psychological counselling, substance abuse counselling, alcohol counselling. It is the recommendation of the Court that all counselling and programs should be, if possible, be Indigenous based. • At the direction of and to the satisfaction of your probation officer, you must completed 75 hours of community work service. Such community work service must be completed on or before September 4, 2024. • While outside your residence, you must not possess any knives, unless you are immediately preparing or consuming food or immediately engaged in your employment.

Ancillary Orders [ 79 ] The Crown seeks collateral orders known as a DNA order, firearms prohibition, and victim fine surcharge. The defence does not oppose these orders. Weapons [ 80 ] Pursuant to s. 109(2), I make two orders: I order that Mr. Arnet be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition or explosive substance for a period of ten years after release from prison; and I order that he be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

DNA [ 81 ] Manslaughter and robbery are a primary designated offences under the Criminal Code pursuant to s. 487.04 . This means I am required to make an order under s. 487.051 of the Code authorizing the taking of bodily samples from Mr. Arnet that are suitable for analysis and storage in the DNA databank. Victim Fine [ 82 ] Mr. Arnet has been unemployed and in custody for a significant period of time and as a result, the victim fine surcharge is waived. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia