R. v. S.A.T. Date:, 2016 BCPC 355

Citation: R. v. S.A.T. Date: 20161024 2016 BCPC 0355 File Nos: 59785-3-B, 61739-2-C, 61739-3-A, 61739-4-A Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. S. A. T. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: D. Walsoff Place of Hearing: North Vancouver , B.C. Date of Hearing: October 24,, 2016

Date of Judgment: October 24, 2016 [ 1 ] THE COURT: I have not done written reasons, because, Mr. T., I really want to address my comments to you. I want to tell you at the outset that I will be sending you back to the federal system. There will be 39 months of new time.

In effect, I am agreeing with the Crown position and I wanted to tell you that now, and as I go through my reasons I hope you can understand how it is that I have regretfully come to that conclusion. [ 2 ] You pled guilty on September 30th, 2015, to aggravated assault of Chabane Lazib arising the 29th of March, 2015, here in North Vancouver; and on the same date and arising from the same incident, assaulting Constable Olak in the execution of his duty. [ 3 ] That incident gave rise to two breaches of probation.

That order relates back to the sentence Judge MacKay imposed June 28th, 2013, with respect to your prior conviction for aggravated assault. Those counts involve being in possession of a knife, that is Count 1, and failing to abstain from the possession of alcohol or substances, that is Count 2. [ 4 ] You also pled guilty on February 17th, 2016, to two counts of breach recognizance being the bail on the aggravated assault out of North Vancouver.

The first offence was December 1st, 2015, for failing to report to your bail supervisor, and on December 3rd, 2015, for failing to remain on the [omitted for publication] Reserve lands. I do not have the date that you entered the plea to the June 10th, 2015, breach of recognizance, but anyway, a plea was earlier entered on that matter and that, again, involved consumption of alcohol. [ 5 ] The circumstances of the aggravated assault and assault-peace-officer, as you are well aware, were that, at approximately midnight, Mr.

Lazib was on the street in front of his house because a fire alarm was going off in his building. You were across the street. He was a stranger to you. You were intoxicated and the police believed you were under the influence of drugs. [ 6 ] You began yelling at him. He was doing nothing to provoke you. You quickly approached him from across the street. You punched him several times to the head. You knocked him to the ground and began kicking him. Throughout this period of time, you were screaming and highly agitated. You then ran away and, as you did so, you dropped your jacket.

When the police recovered your jacket inside was an eight-and-a-half-inch knife. [ 7 ] You were arrested by the police shortly thereafter and they observed you were intoxicated and they believed under the influence of drugs. You acted out against the police officers at your arrest. You were taking swings at Constable Olak and also attempted to knee him in the head. [ 8 ] This was a very serious assault. I will read from the victim impact statement, and I will begin by noting that the victim had a wife and two children who are now 12 and 19, so I guess about 10 and 17 at the time of the offence.

She says this [as read in]: My husband was hospitalized for 13 days at Lions Gate Hospital due to severe injuries. He suffered a triple fracture to the right iliac bone of his pelvis, a concussion, and two big bruises to his upper right arm, bruised eyes, and bleeding under the right eye and a cut on the left side of his lip. He suffered from bad migraine headaches non-stop for four days in a row. He had aches and pains everywhere. He could not move or turn in bed due to agonizing pain even though he was taking strong painkillers and narcotics prescribed by the doctors.

He suffered memory problems, lack of concentration, sleeplessness, migraine headaches that are still ongoing and sometimes he cannot bear them. He was very irritable, lost his appetite, and withdrew from his family. He was required to use crutches for five months. On an ongoing basis, he has lost his ability to work and the family has lost his income. [ 9 ] Mr. Lazib suffers from post-traumatic stress and depression. He also continues to suffer from migraine headaches and chronic hip pain that gets worse with cold weather.

The offence, "the battery", as she described it, "left us all with a deep sense of fear." [ 10 ] She describes how hard it has been for them financially as they could not afford the physiotherapy or rehabilitation and expensive medication her husband required, and she says at the end: Nothing will ever restore my husband's health to the way it was before or the enjoyment of life we had as a couple and family.

The sense of security and harmony that we had before is shaken so badly that we do not know if we will ever feel secure again, especially if the defendant is around the vicinity. [ 11 ] I turn now to your criminal history. It starts as a youth in 1989 with some property offences. Your first break and enter was one of your first offences and that occurred on July 27th, 1989. You actually received a brief period of custody. You second break and enter was in February of 1991. Your third and fourth break and enters were in December of 1991. Your fifth break and enter was in October of 1994.

Your sixth break and enter was in March of 1995. [ 12 ] There are number of drug and property offences through 1995 and up to 2001. Indeed, there is a hiatus or a gap in your record for almost six years from September 1995 to 2001. I am not sure what was going on for you then, but things were at least better for you in terms of involvement in the criminal justice system. [ 13 ] Your seventh break and enter was dealt with June 28th, 2002, but occurred in September of 2001. Your eighth break and enter occurred on August 29th, 2003, and it was dealt within in November of that year.

Your ninth and tenth break and enters occurred in September, and were also dealt with in November of that year. By that point, you were receiving a year in jail and 18 months' probation. [ 14 ] There follows a number of breaches and a property offence, but in February of 2005, you committed your eleventh break and enter and that was dealt with in September of that year and you received a time-served sentence of seven months.

Your twelfth break and enter was the one dealt with by [omitted for publication] in April of 2007, and that was the offence for which a two-year jail sentence and three-year probation order was imposed. [ 15 ] We then have your thirteenth through seventeenth break and enter offences, all of which occurred in either late 2006 or early

2007. They were dealt with in October of 2008. It was at that time that [omitted for publication] imposed a one-year term with probation to follow and the Court of Appeal in May of 2009 substituted a four-year consecutive sentence for those offences. [ 16 ] Your next offence is the aggravated assault committed in custody that was dealt with by Judge MacKay in June of 2013. That is the one for which the Gladue report was prepared. That offence occurred in March of 2011 and I believe that was at the Matsqui Institution.

You then have the May 2013 assaults which occurred while you were awaiting sentence on the previous aggravated assault, dealt with in October of 2013, and you received a 30-day jail sentence on those matters. [ 17 ] The Gladue report speaks to your circumstances as an Aboriginal offender and I am going to put that information on the record. At that time, in 2013, you were 41 years old. You are Coast Salish, specifically of [omitted for publication], and [omitted for publication] descent. You were born in Vancouver, the youngest of six children, to G.T. and S.T.

Sr., now deceased. [ 18 ] It notes that you are registered as a Status Indian with the [omitted for publication] Nation. You are the father of two sons, S.T. Jr. who was then 21 and T.T., now age six. It notes that T.T. lives with his mother, N.M., in North Vancouver. You have a number of siblings who have not had contact with the criminal justice system with the exception of one brother when he was young. [ 19 ] It describes that your parents were alcoholics from your earliest memory of them and continued to drink until you were 20 or 21 years old.

You described your parents as happy-go-lucky drunks and that there was no family violence. This was corroborated by your siblings. However, you were often left to be cared for by your older siblings while they went out to party.

You described that your sister, N., would feed you, but that you did not have any rules and so you went where you wanted and did what you wanted. [ 20 ] You then described the sexual assault which occurred when you were six or seven years old when your neighbour came out, chased your brother away, took you into his house, offered you some alcohol to drink, punched you, threw you on a bed, and sexually assaulted you. You believed he was under the influence of alcohol.

That conduct continued several more times and, on the last occasion, there were two adults males who assaulted you who were both under the influence of alcohol. [ 21 ] The report goes on to note that at age 20, although you were prepared to go to [omitted for publication] and did attend [omitted for publication], you were not yet able to deal with the trauma of the sexual offences against you as a child.

I just pause to note that that is perfectly consistent with the experiences of many people who suffer from childhood sexual assaults. [ 22 ] Your sister observed, and we are all well aware, that sexual abuse of children in First Nations communities is a direct result of the residential school system and the assimilation policies. For many, many years, although hopefully not anymore, people simply did not talk about it. [ 23 ] With respect to your substance abuse, it can only be described as a very early onset. You began to smoke marihuana when you were only eight or nine with other children in the community.

You started drinking alcohol when you were only 10 or 11. You said it was easy to get because it was so available in everyone's home. You said this [as read in]: Alcohol was my first big painkiller. By the time I was 13 years old, I was doing lines of cocaine with my friends. I freebased cocaine when I was 16 or 17 and that was it. I felt absolutely no pain. [ 24 ] With respect to your family's history and attendances at residential school, you advised, and your mother has confirmed, that your father and uncles all went to Indian residential school.

You did not know which one, you did not know how it may have affected your father, but your father and all of his brothers were alcoholics. [ 25 ] Your mother reported that the school was not far from the reserve and she did not know why your father had had to go there. He was not allowed to go home and he and his brothers were not allowed to talk to their sister who lived in the girls' part of the school. Your father did not talk about anything that happened to him at residential school, but he told your mother when people did begin to talk about the residential schools that all of what was being said was true.

She said that, to her knowledge, your father was not sexually abused at residential school. Mr. T., we all know that what went on in those residential schools. Even if it did not involve sexual abuse, it involved mental and physical abuse, some of which would now be described as torture. [ 26 ] You have two sons, S. Jr., 21, and T.T. You talk about the difficult relationship you have with your older son because you have not been around. You have been in and out of custody as he has grown up, but you are in contact with him.

T.T.'s mother, N., has also struggled with drug addiction, but has been clean for four years. You have been visiting, along with your mother and sister at another sister's house, with T.T. a few times a week and you keep in contact with T.T. by phone. [ 27 ] You talk about meeting with Elder Mervin Felix at Kent about six times over the past two years. Mr.

Felix confirmed that and he also confirmed that you disclosed to him the childhood sexual abuse and that you had unresolved grief about your father's death and the death of one of your cousin. [ 28 ] Somewhere in the materials, there is a reference to the fact that you believe that you have suffered from depression.

In 2013, Elder Felix said that he believed you were ready to deal with your trauma, that the sexual abuse was the cause of your addiction and crime, and that he had advised you to "treat your trauma and then your addiction will be taken care of." He reported that you told him you wanted to pursue treatment when you were released and he encouraged you to connect with your elders and counsellors on the street to continue your healing. [ 29 ] In terms of your cultural involvement, you have not, unfortunately, had a great deal of cultural involvement other than fishing and playing lacrosse. [ 30 ] With respect to recommendations, the Gladue report writer said that, depending on your Corrections assessment, you could serve your time, and I am not sure how to say this, at the Kwìkwèxwelhp Healing Village, formerly the Elbow Lake Institution, which is a federal institution in the Fraser Valley.

In my view, this would be a positive program for you.

[ 31 ] I will not deal with the presentence report in any particular detail. It repeats and confirms much of what was stated in the Gladue report as well as the psychological assessment which was done as part of the presentence report. However, it was prepared by an experienced probation officer I regard very highly, and she notes as follows [as read in]: We had a lengthy discussion about S. leaving to go into treatment.

He admitted that he was afraid to go there, but that he was not afraid of jail. [ 32 ] She goes on to say: At some point, he has to take responsibility for his poor decisions and his unwillingness to go for the treatment he needs for both the substance abuse and the sexual abuse which he divulged for the Gladue report. S. has a good family who have had to deal themselves with the problems that the residential school system has created. They all appear to be leading prosocial and meaningful lives.

The mistakes that S. has made and continues to make are those of an adult who plays the system game, was pretending to want treatment, but never really committing to the change he has said he needs and wants. [ 33 ] I just want to pause to say, Mr. T., I do not believe you are pretending to want treatment. I believe you sincerely want treatment. I cannot imagine existing as you do and not sincerely wanting treatment. It is a different issue. It is having to face up to what you will go through in treatment that you are unable to do.

I just want you to know that that is my view. [ 34 ] In the psychological report, again, much of the same history is repeated. Under the "Risk Assessment" category, I will just read two paragraphs, and this is a report, just for the record, from February 2016, and they say this [as read in]: There were also some positive indicators in the current assessment including that Mr. T. appears to be motivated for treatment, has access to a number of positive supports and programs, and was able to generate realistic plans regarding his functioning.

There was an absence of major mental health concerns related to violence. [Paragraph, continuing the quote] Without intervention, Mr. T. is estimated to be at high risk of violence. If Mr. T. is able to successfully manage his substance use problems in the community, it is likely that his risk would be considerably lower. Were Mr. T. to commit further violence, it appears most likely that he would get into conflict with antisocial peers or acquaintances based on his history.

Other possible scenarios include situations where he is provoked or perceives provocation from others including strangers most likely under conditions of stress or substance use. [ 35 ] Under "Conclusions and Recommendations," it says this: If his compliance with supervision and treatment interventions continues to be poor, it is unlikely to address his risk. Mr.

T. has strengths of intelligence and interpersonal skills as well as positive supports and programs available in the community. [ 36 ] Further on in the next paragraph, it says: The diagnosis reflects that while he does not appear to be using substances while in custody, he is at high risk of relapse when he is released to the community. Mr. T. further presented with antisocial traits including impulsivity, aggression, and antisocial behaviour. [ 37 ] Mr. T., I want to also say that, in my view, that is true, but it is circumstantial.

Do you understand what I mean by that? [ 38 ] THE ACCUSED: Sort of. [ 39 ] THE COURT: Okay, I do not think that that is your ingrained personality. [ 40 ] THE ACCUSED: Yeah. [ 41 ] THE COURT: I think those are traits which you have learned and, if you can learn them, you can unlearn them. It is not as though you have, as some do, a lack of empathy that is hardwired. [ 42 ] So, to summarize your antecedents, you are now 44 years of age. You grew up neglected due to alcoholism in your family home. You were mostly raised by you sister, N., who is eight years older than you are.

You were left unprotected as a child and, as a result, were sexually abused. There is no question in my mind but that the perpetrators of that abuse were residential school survivors themselves and alcoholics as a direct result of that experience. [ 43 ] You are someone who engaged in early drug and alcohol use which means that abuse of those substances is entrenched and it will take a great deal of treatment and effort on your behalf to overcome your addictions.

By age 16, 17, you were already addicted to cocaine and you have had a struggle with crack cocaine ever since. [ 44 ] Your entire family was impacted by the residential school system.

Your mother commented in the sentencing proceedings that she remembers that they were not even allowed to work, that she was only the second generation of people allowed to work off of the reservation and that they were not even permitted to leave the reservation freely until 1953. [ 45 ] In all the circumstances, I find that you have been profoundly impacted by the Gladue factors and that your moral culpability for the offences before the court is reduced. [ 46 ] Your mother also commented that because of the fact that you are so intelligent that knowing about the circumstances of your people and experiencing life living on the reserve and experiencing prejudice in the greater community has been much harder on you than it has been on many other people.

You simply appreciate that, understand it, more keenly than others might. [ 47 ] I wish your mom and sister were here because I am going to digress a bit to talk about how you went, as Mr. Walsoff argued, from a property offender to now being a violent offender. I wanted your mother and sister to know I found them to be very respectful of

the process and the court and that they participated meaningfully and helpfully in the proceedings. [ 48 ] They know that what you really need is long-term treatment, recovery, and counselling for trauma, and counselling for substance abuse. They clearly see that is what is required. But, they had concerns they raised about the failure of the correctional system.

By placing you in the federal system, you were exposed to the gang culture, to drug trafficking and drug use in custody, to violence in the institution, to victimization by others in the institution, and being put in a position where it was you or the other guy. [ 49 ] You also, I think the proper figure, is that you spent 17 months in segregation. [ 50 ] THE ACCUSED: Twenty-one. [ 51 ] THE COURT: Twenty-one? I know that is what Mr. Walsoff said. The reports say 17. I will accept that it was 21. It does not matter.

Seventeen months is too long. [ 52 ] I went back and I found the decisions relating to your earlier convictions. I have read the decision of Judge [omitted for publication]. That is the one I have already referred to where you received a two-year sentence and three years' probation. I have also read the decision of Judge [omitted for publication]. That involved the sentencing for your thirteenth to seventeenth break and enters. I have also read the B.C.

Court of Appeal decision [omitted for publication] which substituted a four-year sentence for Judge [omitted for publication] sentence. [ 53 ] In my view, you received a lenient sentence from Judge [omitted for publication]. The Court of Appeal, in my view, was correct to substitute four years for Judge [omitted for publication] sentence. It has been pointed out to you over and over again that residential break and enters are very serious offences.

It is one of the highest values in our society that our homes are our sanctuaries and going into someone's home to steal money for drugs has to be treated with the utmost seriousness, particularly when someone chooses it and repeats that behaviour as their method of obtaining money. [ 54 ] I never want to be seen as flippant, but I sometimes say to offenders that there is a lot of stuff you can steal to get drugs and you do not need to go into people's homes to do it. For whatever reason, that has been your choice and the last set of offences were particularly serious because you ransacked the homes.

That is an indication of just rage. [ 55 ] The sentence imposed by Judge MacKay in the circumstances, and I will get to them in a moment, of 15 months, is at the low end of the range for aggravated assaults. As I understood it, you very nearly killed that other inmate in custody. [ 56 ] Your mother and sister expressed what I would describe as a deep feeling of injustice at what happened to you in custody.

When I say what happened to you in custody I mean the fact that you went into custody and then began acting out so violently while there. [ 57 ] We have the history of the residential schools and the assimilation policies and the consequences that they are altogether too aware of, to them, their families, their children, their brother and it is ongoing.

Your people suffered a profound injustice as a result of those policies which purported to promote and protect the interests of First Nations people. [ 58 ] You then end up in another government institution which has a responsibility for the care and custody of inmates and to provide programs to assist with the rehabilitation and reintegration of offenders. Their role is to exercise reasonable, safe, secure, and humane control of inmates while providing them with assistance and encouragement to become law-abiding citizens.

The principal goal of Corrections Canada is said to be public safety. [ 59 ] Your mother and sister and I am sure you, in your own view, and reasonably so, see that yet another system and the institutions it operates has failed in its purpose and duties to you and to your family. There is no question that our correctional system is flawed. In particular, there is an overuse of segregation and, in particular, with respect to First Nations people. This is an issue that the Corrections Investigator, Howard Sapers, is pursuing and it is now being covered by the media.

There was another report in the weekend paper about some poor youth in Ontario who has spent 1,500 days in a glass cell unnatural light which is considered worldwide to be a form of torture. [ 60 ] It is also true that there is an implicit bias which exists in our correctional system towards First Nations people that results in longer and harsher treatment in our institutions. It is not right, but it is there. It is also true that our correctional institutions are unable to prevent violence amongst inmates. They can control it but they cannot prevent it.

They struggle consistently to try and prevent drugs getting into their system, being used, and being trafficked. [ 61 ] I accept that you faced intimidation and threats of violence when you were in Kent Institution. When I visited clients there as a lawyer, I was terrified and I had the protection of the guards. [ 62 ] However, it is clear you chose to engage and you became enmeshed in a cycle and culture of violence in that institution.

It is also clear to me that Judge MacKay took all of that into account when he imposed the sentence of 15 months for the aggravated assault because it is at the low end of the range of sentence. [ 63 ] Here today, in this proceeding, it would be an error at law for me to consider this as mitigating the offence before the court, and I want you to understand that. I have to deal with you as you were when you committed this offence and with the risk that you present today. These prior circumstances explain how you have come to this point in your life, but, and again at law, Mr.

T., they do not excuse or reduce your moral culpability for the offence. We have a very high standard in Canadian law with respect to choices and free will. The defence of necessity is a rare one and is only accepted in very limited circumstances. You know there were choices to be made. You made those choices at the time, you cannot go back and unmake them, but you can choose not to make those same mistakes again in the future. [ 64 ] On the one hand, you are described by many as a likeable, kind, caring, intelligent, and capable person. It is not often we have

people with your background before the court who are described in that way. On the other hand, you have engaged in a lifetime of denial and that denial of your pain has festered. It has poisoned your life. You know that. It has led to your addictions to crack and alcohol. That has led to your criminal conduct, and it is simply because you have been unable to face the pain of your circumstances, and I also accept, Mr.

T., that there is little available to you in custody to assist you in that process. [ 65 ] Your current circumstances are such that you continue to have very strong family support, in particular, from your sister, N., and your mother. You have community support. You can return to the [omitted for publication] lands if you are clean and sober and if you choose to live a prosocial life. [ 66 ] You have a young son, T.T. His mother does not appear to be a positive influence in your life. She was with you on the night of this incident or you were with her earlier and she was also with you on December 3rd.

She must have known that you were breaching your bail. Your son, T.T., needs you to commence your healing journey. He needs you to be his father. [ 67 ] You have prospects for employment. You can work and you are a good worker when you are clean and sober. You have no cognitive or mental health challenges to prevent you from going forward. [ 68 ] I accept that you understand the seriousness of this offence and your history. I accept that you sincerely accept responsibility and are sincerely remorseful for your behaviour.

You have repeatedly expressed, as is referenced in the earlier decision, your desire to "finally deal with things." You have repeatedly expressed your remorse and understanding, but so far it has not been sufficient to motivate you to take the steps you need to to change. [ 69 ] To a great extent, you have become what is called institutionalized. That is why you said to Ms. Fenton, "I'm more afraid of counselling than I am of going to jail." For those of us who have never been in jail, that is really quite a remarkable statement.

You remain a high risk to reoffend because you still have not been able to address those issues. [ 70 ] I will now deal with your first offence of violence. I have covered the property offences and break and enters. It was the aggravated assault which occurred in custody in March of 2011.

Prior to that incident, the Corrections records indicate that in 2009 you were involved in three violent incidents, one of which involved the stabbing of another inmate; another which involved the beating of another inmate, and the third being an assault in the yard of the segregation unit. [ 71 ] As a result of those incidents, you were transferred to Kent Institution.

In March 2010, you were involved in a stabbing; in November of 2010, you disposed of a weapon that had been used by another inmate in a stabbing; and then we have the offence for which you were convicted where you stabbed another inmate 15 times and that person lost a kidney. [ 72 ] As I understand the circumstances of your second conviction for violence which was in May 29th, 2013, that occurred in a remand institution where you threw urine on two different guards. That was the offence for which you received the 30 days. [ 73 ] I well remember dealing with you with respect to your first breach.

You were surveilled leaving the institution once you had finished your sentence. You ate at a restaurant, you visited a friend, and you went shopping instead of going and doing what you needed to do which was reporting immediately. You received a seven-day sentence at that time. [ 74 ] The next matter in time is the aggravated assault that we are dealing with today and the breaches of probation which arise directly from that. Your next involvement was on June 10th, 2015, where the police found you at 7:00 in the morning in your underwear wandering around on the [omitted for publication] lands yelling.

You were intoxicated and they found drug paraphernalia on your person. You were later released from custody by the police. [ 75 ] Your next involvement was on December 1st, 2015, where you failed to report and Ms. Fenton indicates that she had given you a great deal of leniency as a result of the deaths in your family around that time. Then, on December 3rd, the mother of your child was driving. She was speeding. The vehicle was stopped. It was 3:15 in the morning and the vehicle was stopped off the [omitted for publication] lands. You were arrested at that time and have remained in custody since.

Once you were in custody, the psychiatric report which had been earlier ordered had to be reordered because you had not attended the appointments necessary for that to be prepared out of custody. [ 76 ] You then came back before the court April 4th, 2016, and there was a suggestion that you should be released on bail to give you another opportunity to try and address your rehabilitation.

The plan at that time was to attend residential treatment at VisionQuest, The Creek. [ 77 ] We adjourned to get information about your progress in the remand institution and, on May 10th, 2016, we came back to court and the assistant deputy warden from North Fraser Pretrial came to testify. He noted numerous infractions which had occurred since you had been taken into custody involving disrespect, inciting assault, and possession of drug paraphernalia. However, he did note that, for the previous six weeks, you could be described as having had excellent behaviour.

You had attended three AA meetings in March and April and up to May 10th. You may recall the discussion we had about your assertion that you had been attending AA for three months when, in fact, it had only been three sessions. I found it necessary to deny your application for bail and we are now over to today. [ 78 ] I am granting you 10 months’ time served. That is slightly rounded up, but that includes four days when you were first in custody before receiving bail almost immediately after the aggravated assault and then the 10 months -- or nine-and-some months after that.

So I will be giving you credit for 15 months' time served. [ 79 ] The Crown says, and quite properly so, that for this kind of offence, denunciation, general deterrence, and protection of the public are the principles of sentence that must be given the greatest weight. I would add to that specific deterrence of you. You must understand this has to change, you have to change. [ 80 ] I find that in your circumstances at this time, rehabilitation is not engaged, although I am not going to step up the sentence -- well, I suppose it is stepped-up from the sentence of Judge MacKay.

And the reason I say rehabilitation is not engaged is your age.

Most men of your age do not stay involved in criminal activity. We call it "aging out." I am so hopeful that this is the state that you will pass through over the next while. I also base this on your lengthy history and your inability to effect your rehabilitation while released, and also to some extent while in custody. I do not put a great deal of weight there because there is so little available to you in a remand institution. [ 81 ] I have carefully considered, obviously -- at least I hope it is obvious to you, the fact that you were not previously a violent offender.

There is no history of violence until you were in the federal system, and I have certainly considered that I will be returning you to milieu where that occurred. The irony of that, sir, is not lost on me. I take into account that you, yourself, were victimized and were the victim of a stabbing; that is correct, in custody? [ 82 ] THE ACCUSED: Yes. [ 83 ] THE COURT: In mitigation, you entered pleas. I accept that you are sincerely remorseful. I accept that you understand the serious nature of your conduct.

I do not want to give you the message -- in fact, I am taking this opportunity to speak to you in this way, Mr. T., because I am not saying that your rehabilitation is not possible. It is clearly possible. You can, I believe, do anything you want to. You have the ability to do that. So many of the offenders that come before us suffer from cognitive and developmental challenges. They cannot and never will be able to deal with some of their issues.

However, at this stage, there is no evidentiary basis for a finding that you have changed in terms of your attitude and risk since the time of this offence. [ 84 ] The aggravating factors in this matter are the nature of the assault. It was an unprovoked and vicious attack on a stranger, a stranger who was an older person and who was defenceless. You caused him serious injuries and psychological trauma. It was a life- changing event for him, for his wife, and for his children.

He will never be the same. [ 85 ] The offence resulted from your failure to abide by the terms of a probation order relating to an earlier violent offence, also an aggravated assault. You were intoxicated and carrying a weapon and we can all be thankful that you did not choose to use that weapon on this occasion. [ 86 ] While you were on release with the hope that you would be able to pursue your rehabilitation, you were non-compliant with reporting to your probation officer and with attending the Forensic Psychiatric Out-Patient Clinic. You manipulated your bail supervisor.

You were untruthful about the activities you were engaged in and, again, you were not able to effect your rehabilitation. [ 87 ] Mr. Van Eden who cares very much for you spoke and he said, "When will he deal with his pain and stop hurting others? What will give him the motivation to change? What will his turning point be?" And I would say, Mr.

T., it has to come from within you and you first have to rid yourself of your demons. [ 88 ] I went on a canoe journey and one of the things we were told to think about every time we put our paddle in the water was to let past pain go, to send it into the water with every stroke you took, and I hope someday you have the opportunity to do that. [ 89 ] The range as suggested by the Crown is appropriate and fair in all the circumstances. I refer to my own decision in R. v.

S.F. , 2015 BCPC 441 , which did go to the Court of Appeal and I was found to be in error but on a different ground, and I quote from paragraph 44: The range of sentence for an aggravated assault is from 16 months to six years. The Crown relied on Johnson and Woodward , cited below, and R. v. Clyne , 2005 BCPC 199 ; R. v. Paterson [cite following] and R. v. Craig [cite following]. Defence counsel relied on R. v. Hansen ... R. v. Paquette ... R. v. Nakamura ... R. v. Lewis and Lewis ... At paragraph 52: The higher end of the range is imposed where weapons are used and the attack is unprovoked and brutal in nature.

Sentences at the lower end are imposed where the parties are fighting and the use of force escalates causing serious injury. An offence consisting of an unprovoked single blow or push which causes significant or lasting injury results in a sentence in lower to middle of the range. [ 90 ] I have considered all of the principles of sentence set out in s. 718, 718.1, and 718.2 of the Code . I have also considered the Supreme Court of Canada decisions in R. v. Gladue , R. v. Wells , and R. v. Ipeelee .

I am satisfied that, in this matter, the greatest weight must be given to protection of the public, denunciation, general deterrence, and specific deterrence. [ 91 ] Again, Mr. T., I regret I cannot impose a provincial sentence with probation to follow. I simply have not been able to find my way clear to doing that. Had you been able to pursue your rehabilitation, that might have been an appropriate sentence at this stage and I wish that were the case today.

It, in any event, would have been an exceptional disposition. [ 92 ] I sincerely hope that you have continued to be of good behaviour in the North Fraser Pretrial Centre. Is that true? [ 93 ] THE ACCUSED: Yes, yes. They got me on Bravo West which is a non-ESP unit. [ 94 ] THE COURT: Okay. [ 95 ] THE ACCUSED: I have been there for four months -- [ 96 ] THE COURT: Okay. [ 97 ] THE ACCUSED: -- five months. [ 98 ] THE COURT: Because -- the reason I hope that is because it is going to assist with your classification in the federal system. [ 99 ] THE ACCUSED: No, that won't -- I will be going back to Kent, anyways.

[ 100 ] THE COURT: Well, I am hopeful that is not the case or, at least, if you are there, only for a short time. As I indicated, the warrant will recommend you serve your sentence at the Healing Village. And I urge you to take the assistance of Mr. Van Eden to immediately connect with the elders, to immediately request drug and alcohol treatment, and to say to them, "I know what I was when I was last here. I want you to look at my provincial correctional records. I am trying to change. I want to change and I want your help." [ 101 ] I can only urge you to continue to be compliant with Corrections.

It is the only way you are going to move forward and practise mindfulness. Do you know what I mean by that? [ 102 ] THE ACCUSED: Yes. [ 103 ] THE COURT: Have you ever taken a meditation course or tried? [ 104 ] THE ACCUSED: I have tried it, but it is -- I cannot get -- [ 105 ] THE COURT: It is very hard. [ 106 ] THE ACCUSED: Yes, I cannot -- I cannot just empty myself like that, it seems like. [ 107 ] THE COURT: Well, nobody can.

It takes a great deal of effort and practice, but many people who really try still cannot get it. [ 108 ] THE ACCUSED: Oh, yes. [ 109 ] THE COURT: Okay, but I hope that you can be powerful by being self-controlled. You will gain respect by being in control of yourself. I hope that you make good choices. [ 110 ] So, Mr. T., if you will stand. [ 111 ] With respect to the aggravated assault, I am imposing a sentence of four years. [ 112 ] With respect to the assault of the peace officer, there will be a six-month sentence. It will be concurrent to the sentence just imposed.

I am crediting you with 15 months' time served, 10 of which will reflect as actual time served in this matter. [ 113 ] On the breach of probation, I think the Information is here, so those are on Information 59785-3-B, there will be 90 days' concurrent on both counts, but consecutive to the sentence just imposed for the aggravated assault and assault-peace-officer. [ 114 ] On Information 61739-C-2, Counts 1 and 3, there will be 90 days on each of those counts concurrent one to the other, consecutive to the 90 days imposed for the breaches of probation; and on 61739-3-A, there will be a -- sorry, I should deal with this one. 61739-A-4 and 61739-3-A, again, 90 days' concurrent one count to the other, concurrent -- yes, concurrent one to the other, but consecutive to the 90 days just imposed. [ 115 ] So it is basically the four years less 15 months plus 90 plus 90.

So, in total, that is 54 months less the 15 which is 39 months of new time. [ 116 ] I will order that you provide a sample of your DNA and, pursuant to s. 109 of the Criminal Code , there will be a lifetime ban on firearms. [ 117 ] Do I need to go over that with you? Firearms, crossbows, you have heard that -- [ 118 ] THE ACCUSED: Yes. [ 119 ] THE COURT: -- before. [ 120 ] MR. WALSOFF: Your Honour, just -- I do not know if it is appropriate or not, but Mr. T. and myself did some calculations and my calculation to today is about 321 days.

I am not sure that I have -- I think I have that right. [DISCUSSION RE PRETRIAL CUSTODY CREDIT CALCULATION] [PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [ 121 ] MR. WALSOFF: So I think we finally came to an agreement that it is -- he has been in for 325 days so that roughs out to 487 days which is 16 months and seven days, roughly rounding it out. [ 122 ] THE COURT: So 16 months' credit -- [ 123 ] MR. WALSOFF: Yes. [ 124 ] THE COURT: -- instead of 15? [ 125 ] MR. WALSOFF: Yes. [ 126 ] THE COURT: Okay, so that is -- so 11 -- let us just say 11 actual, five enhanced, total 16, 38 months' new time. [ 127 ] MR.

WALSOFF: And just -- [ 128 ] THE ACCUSED: [Indiscernible].

[ 129 ] MR. WALSOFF: -- what I made clear to him is that Your Honour is going to endorse the warrant with the recommendation of Elbow Lake. [ 130 ] THE ACCUSED: Yes. [ 131 ] MR. WALSOFF: And I have talked to Mr. Van Eden -- Van Eden about potentially getting the band to support that and write [indiscernible/voice low]. [ 132 ] THE COURT: I would hope they would. I hope you will do everything you can to keep him out of Kent Institution. I am going to have the warrant endorsed.

I am going to order an expedited copy of my reasons so that Corrections has that for classification. [ 133 ] THE ACCUSED: I appreciate that. I am not sure how much it will help once I am actually in the system, but thank you. [ 134 ] THE COURT: I know. We cannot do very much, but you know what, the band can. So keep in touch with Mr. Van Eden. [ 135 ] THE ACCUSED: Yes, for sure. [ 136 ] THE COURT: Okay, good luck. [ 137 ] THE ACCUSED: Thank you. Yes. [ 138 ] MR.

WALSOFF: Call me if there is anything you need. [ 139 ] THE ACCUSED: Yes, I will. [ 140 ] THE CLERK: Yes, sorry, Your Honour, and the DNA and firearms, is that just [indiscernible]. [ 141 ] THE COURT: Yes, [ 142 ] THE CLERK: Transcript and the victim surcharge? [ 143 ] THE COURT: Waived, not fined. [ 144 ] MR. WALSOFF: I think we said victim fine surcharge -- [ 145 ] THE COURT: Yes, well, he is not paying. The record will reflect he is excused from paying. [REASONS FOR SENTENCE CONCLUDED]