R. v. Paul Date:, 2012 BCPC 390

Citation: R. v. Paul Date: 20120914 2012 BCPC 0390 File No: 59577-1B Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL ALPHONSE PAUL BAN ON PUBLICATION Pursuant to ss. 486.4(2) and 486.5(1) Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE YOUNG Counsel for the Crown: A.M. Tosso Counsel for the Accused: G.P. Dickin Place of Hearing: Chilliwack , B.C. Date of Hearing: September 14, 2012

Date of Judgment: September 14, 2012 [ 1 ] THE COURT : The accused, Daniel Paul, pleaded guilty to a charge that on or about the 4th of August, 2011, at or near Chilliwack, in the Province of British Columbia, he did without reasonable excuse fail or refused to comply with a long-term supervision order (hereinafter referred to as an "LTSO") by failing to reside as directed, contrary to s. 753.3(1) of the Criminal Code of Canada , R.S.C. 1985, c.

C-46 [the Code ]. [ 2 ] In 2002, the accused was convicted in the Supreme Court by a jury of two counts being sexual assault with a weapon and aggravated sexual assault in relation to a prolonged series of assaults upon his girlfriend, A.P. [ 3 ] On April 16th, 2004, the accused was sentenced to four years incarceration. At that sentencing hearing, Mr. Justice Grist declared Mr. Paul to be a long-term offender and sentenced him to four years concurrent on each offence to be followed by a long-term supervision order for a period of five years. That long-term supervision order commenced to run on April 14th, 2009.

The expiry date was to be April 13th, 2013, prior to the current offence. [ 4 ] Mr. Justice Grist, at paras. 17 and 18 of his Reasons, recommended that Mr. Paul receive programs designated to address violence prevention, prevention of sexual offences and substance abuse. The recommendation was that the programs be offered through programs designed for aboriginal offenders. The Court further stated that the accused should actively participate in maintenance programs on release and abstain from alcohol and non-prescription drugs.

He was not to have contact with A.P. and was not to form a romantic relationship or reside with a woman without her having been counselled as to his history of assaults and the risk he presents to re-offend. [ 5 ] The issue before this Court is what is an appropriate sentence for the breach of the long-term supervision order? [ 6 ] The Crown seeks a sentence of 18 months less time served in custody since November 2nd, 2011 being the date this charge was laid.

The defence seeks a sentence of 12 months incarceration. [ 7 ] The Crown points out that the LTSO continued to run from the accused's detention to November 2nd, 2011. The order has ceased running and will resume once the sentence expires. [ 8 ] The Crown also points out that the Court is obliged to consider s. 743.1(3.1) of the Code which sets out the following: (3.1) … an offender who is subject to long-term supervision under

Part XXIV and is sentenced for another offence during the period of the supervision shall be sentenced to imprisonment in a penitentiary. [ 9 ] The Crown has drawn my attention to the prior sentencing decision of Judge McMillan with respect to the same accused on a breach of the LTSO. The date of that decision is August 3rd, 2010.

Judge McMillan imposed a 15-month sentence but gave the accused credit for pre-sentence custody of four months and 23 days on the basis of one-and-a-half times which yielded a further jail sentence of seven months and two weeks. [ 10 ] The Crown has also drawn my attention the decision of R. v. Ipeelee and Ladue , 2012 SCC 13 . The Supreme Court of Canada held that 718.2(

e) of the Code pertaining to aboriginal offenders is mandatory and must be applied in all cases including the case of long- term aboriginal offenders. [ 11 ] For that reason I had ordered the preparation of a Gladue report in order to assist in addressing the issue of rehabilitation. [ 12 ] The Crown also provided the Court of Appeal decision in R. v. Ladue , 2011 BCCA 101 . The Crown further referred to R. v. H.P.W. , 2003 ABCA 131 ; R. v. S.J.D. , 2004 BCCA 78 ; R. v. Wilson , 2010 BCCA 65 ; R. v. Larocque , 2012 BCCA 216 ; and lastly the recent decision of R. v.

Matte , 2012 ONCA 504 . [ 13 ] The Crown points out that the accused took counselling and programs designed to reduce the risk that he would re-offend. The Parole Board imposed conditions on him which addressed his history of offending including a residence condition and abstention from intoxicants, no direct or indirect contact with the victim of the index offence, and the requirement to report all friendships and intimate relationships with women to his parole supervisor. [ 14 ] There have also been prior breaches of the LTSO which has resulted in suspensions.

I intend to review the nature of his prior breaches of the LTSO. [ 15 ] As I have stated, the defence seeks a 12-month sentence. The defence relies on the reasoning in Matte , supra , and Ipeelee, supra , to persuade the Court to impose a sentence less than the 18 months sought by the Crown. [ 16 ] Defence submits that the accused was only away from the halfway house for a short period of time and that S.W. was not an intimate partner.

Also, there were no assaults or other substantive offences during his absence, despite the concerns expressed by the Crown of there being a connection between alcohol consumption and his re-offending. [ 17 ] I would like to turn to the facts. [ 18 ] On August 4th, 2011, just before his 9:00 p.m. curfew, the accused phoned to the Community Correctional Centre where he was obliged to stay saying that he would be late. He arrived at 9:20 p.m. The Commissionaire suspected that he had been drinking alcohol. The manager of the residence directed him to take a urine sample for testing.

He was unable to provide such a sample. Then at 10:55 p.m. he left the facility in violation of his curfew and without providing a urine sample. [ 19 ] The Correctional authorities had provided the accused with a cell phone for the purposes of keeping in touch with him. His cell

phone contained a number of text messages dated August 4th, 2011 from 11:46 a.m. to 10:27 p.m. Those text messages were received by three different women between the hours of 11:46 a.m. through to 10:27 p.m. The content of the text messages was that he was drinking, and that he realized he was in difficulty with respect to his having consumed alcohol by 10:05 p.m. He asked a woman by the name of S.W. to hide him. He asked her to meet him at the store and he stated he was barefoot. [ 20 ] The police arrested the accused at the home of S.W. at 6:00 p.m. on August 5th, 2011.

He then attempted to lie his way out of trouble. He told his parole officer he had not been drinking; that three men had abducted him in an SUV and driven him around Chilliwack for several hours; that he had fought them and run away; that he fled the halfway house because he feared that the men would find him there and attack him again; and lastly he described his relationship with S.W. as just a friend when in fact she later described the relationship as being an intimate one.

I note S.W. is aboriginal which factor also caused the Crown some concern. [ 21 ] I would like to review the decisions of the National Parole Board. [ 22 ] I have had the opportunity of reviewing the material in the Crown's book of documents.

Those materials are the following: the authorities to which Crown has referred, including the decision of Judge McMillan; a National Parole Board (“the Board”) decision dated December 15th, 2010, and another decision dated October 6th, 2011 with respect to prior suspensions of the LTSO, as well as the accused's criminal record. [ 23 ] I would like to touch on some of the materials especially the reasons of the Parole Board in conjunction with Mr. Paul's record. [ 24 ] I turn first to the reasons of the Board dated December 15th, 2010. The Board referred to Mr.

Paul's prior history of assaulting intimate partners, his prior convictions for violence dating back to 1991, and the nature of the prior assaults which took place when he has been sober or intoxicated. He cannot control his rage when under the influence of intoxicants. He has difficulty controlling his anger and dealing with stressors and problem solving. He has also shown impulsivity, relationship instability, and employment difficulties. [ 25 ] As of December 2010 he was unable or unwilling to use the skills and knowledge learned in the programs.

There is nothing to suggest his risks have been reduced during his most recent incarceration and he had some difficulty abiding by rules.

He had been assessed as a moderate to high risk to re-offend and shown willingness in the past to use extreme violence and brutality, and he had been unwilling to abide by release conditions in the past required to manage his risk. [ 26 ] The Board thus went on to impose a number of specific conditions including a residency condition, abstention from intoxicants, no contact with the victim of the index offence and to report all friendships and intimate relationships with women to his parole officer. [ 27 ] I would also like to refer to the Parole Board decision dated October 6th, 2011.

A warrant of apprehension and suspension was issued on August 4th, 2011 after he had fled the Correctional Centre. He was also suspected of drinking. The Board referred to the five year LTSO that came into effect on April 14th, 2009. The prior breaches were referenced by the Board as follows: • May 2nd, 2008: a urine analysis returned positive for THC. • May 15th, 2008: another urine analysis returned positive for THC. He denied smoking marihuana. • December 7th, 2008: the staff at the Community Correctional Centre suspected he was under the influence of alcohol.

He had admitted going to the bar. • February 2008: a urine analysis test was requested after reports of breaching the abstinence conditions by consuming alcohol and marihuana. He refused to provide a sample. • June 25th, 2009: he once again violated the special condition to abstain from intoxicants and was transferred to a minimum security institution.

He was re-released to the community on July 22nd, 2009. • August 13th, 2009: the Correctional staff believed he was intoxicated. • August 15th, 2009: he failed to return to the Community Correctional Centre by curfew and warrants of apprehension and suspension were issued. The Board then recommended the laying of a charge. The Crown did not believe there was enough evidence and he was re-released to the Community Correctional Centre on December 1st, 2009. • December 11th, 2009: the Community Correctional Centre suspected he was under the influence of alcohol. Suspension warrants were issued.

He admitted to purchasing a bottle of rum and having four drinks with his girlfriend in a park. The Board recommended the laying of a charge. He was convicted on August 5th, 2010 of a breach of the LTSO and received a seven month and 14 day sentence, after time served. • He was statutorily released on December 27th, 2010. That release was suspended on February 18th, 2011 after he had contact with a teenage girl and was viewing pornography.

He was returned to minimum security until his LTSO order resumed on April 15th, 2011. • On April 30th, 2011, he returned to the Community Correctional Centre smelling of alcohol. Warrants were issued on May 2nd, 2011 when he admitted to drinking on April 30th. He was then transferred to the Aboriginal Healing Village to participate in the program. He was re-released on May 31st, 2011. • Two months later, on August 4th, 2011, he returned late on his curfew on the current matter. He was suspected of being intoxicated and directed to provide a sample. He was asked to wait and then he could not be found.

Suspension warrants were issued and so he thus finds himself charged with the current breach of the LTSO and back before this Court. [ 28 ] In its decision the Board made a comparison with Mr. Paul's previous pattern of criminal behaviour and I would like to review those remarks.

[ 29 ] In the psychological assessment dated May 11th, 2003 the psychologist was of the opinion that Mr. Paul had a great deal of work to do to understand his crime cycle and the risk factors. The criminal history indicated an ongoing pattern of repetitive behaviour of escalating seriousness. This risk was determined to be high for future violence. [ 30 ] Another psychological report was completed in 2004. In an assessment done in 2006, the psychologist concluded Mr.

Paul's life had been marked by ongoing serious addiction and problems with low self esteem and problem solving skills as well as anger and impulsiveness. He uses power to maintain control over his partners. He has been assessed as a high risk to re-offend with violence against a partner. He has yet to show his ability to manage risk factors in the community. His behaviour is a repeat of prior behaviour and has led to suspensions and the prior breach conviction.

Substance abuse has been linked to his violent behaviour. [ 31 ] On this occasion in August 2011, his girlfriend apologized for not informing the parole officer that he was at her residence on August 4th. Also, it appears that he may not have disclosed to his parole officer that he was involved in an intimate relationship. This current breach is the sixth breach of the abstention condition since April 2008. He has also breached the requirement to report all relationships with women to his supervisor. Both conditions are linked to his risk for violent recidivism.

Counselling programs have had little impact on him. [ 32 ] The Board was of the view that Mr. Paul's behaviour and attitude has deteriorated and that the periods between documented substance use has decreased and the deception has increased. [ 33 ] The Board further considered the numerous interventions attempted in the community including one-to-one counselling with a substance abuse counsellor, one-to-one psychological counselling, and sexual offender maintenance programs with little or no impact.

The many suspensions and the intervention programming at the Aboriginal Healing Village have not mitigated his risk or his continued use of alcohol. In the end, the Parole Board recommended the laying of this current charge. [ 34 ] The Parole Board also went over the facts of the original charge plus his record. The Board pointed out that the record dates back to 1987 and in addition to the current offence, includes multiple convictions and charges for domestic violence.

He has two convictions for assault in 1993, one conviction for assault in 1995, a conviction for assault in 1997 and in 1998, an assault with a weapon conviction in 1998, as well as an assault conviction in 2001, and the offence in 2004 of aggravated assault and sexual assault, for which he received a four year sentence and the LTSO for five years.

Then came the conviction for breach of the LTSO in August 2010 for which he received a 15-month sentence. [ 35 ] I want to turn to the Crown's submissions. [ 36 ] As I have already indicated, the Crown seeks an 18-month sentence plus credit for time served on a one-for-one basis. The Crown submits that given that the prior breach attracted a 15-month sentence in 2010, the appropriate sentence should be a step up to 18 months. [ 37 ] In mitigation, the Crown submits that Mr.

Paul has pleaded guilty and has an aboriginal background which must be taken into account. [ 38 ] The Crown submits that the aggravating factors are that he has previously related convictions; has repeatedly breached the LTSO; fled when he was first caught on this occasion for drinking; attempted to persuade S.W. to assist him to hide; the police arrested him, he did not accordingly turn himself in and he did not take responsibility for his actions but rather gave a story about what had happened.

Also, the Crown submits, the accused violated three of the four special conditions imposed on him, being his residence, abstention, and reporting intimate relationships. [ 39 ] The Crown referred to Ladue , supra . The Court of Appeal in Ladue reduced a three year sentence on a breach of an LTSO to one year, taking into account Mr. Ladue's aboriginal heritage and observing that LTSOs are meant for rehabilitation. The Crown submits that the Ladue case can be distinguished given that Mr. Paul poses a higher risk of more damaging violence. Also, Mr. Ladue tried to avoid a return to substance abuse whereas Mr.

Paul has not. [ 40 ] The Crown submitted that the Gladue principles applied to Mr. Ladue in that he was taken from his home and placed in a residential school and suffered alienation from his culture. In the case of Mr. Paul, he was not placed in a residential school but suffered from the intergenerational aspects of residential schools. That reference can be found at para. 50 of R. v. Paul , McMillan P.C.J. [ 41 ] The Crown distinguished Ipeelee, supra , where the accused received one year for a breach of an LTSO.

The circumstances in Ipeelee were less aggravated than here, plus the accused in Ipeelee was 18 months into his ten year LTSO whereas the accused here has completed more than a half of his five year order. Only two years remain on the current LTSO. Here the accused has repeatedly breached his abstention condition in contrast to Mr. Ipeelee. The accused has received many supports in contrast to Mr. Ipeelee. Mr. Paul has attended programs, in particular in 2005, 2006, and 2009. [ 42 ] In Larocque , supra , the Court of Appeal upheld a 30 month global sentence for two breaches of an LTSO.

However, the Court gave credit on a one-for-one basis for the 47 days that the accused had spent in pre-sentence custody which the trial judge had not fairly stated. Mr. Justice Smith held at para. 50 that the circumstances of the residential breach were serious and the accused's blameworthiness was high.

He held that a sentence of 24 months in all of the circumstances could not be said to be unfit nor the global sentence of 30 months in addition to the 47 days for the two breaches in Larocque . [ 43 ] The Crown submits that Larocque can be distinguished because the accused in that case was suspended nine times before the breach for which he was sentenced; whereas Mr. Paul has been suspended fewer times before this breach. The residency condition was central to Mr. Larocque's management (para. 50) as was the case here. [ 44 ] In terms of general sentencing principles, the Court in Ipeelee , supra , (

a) identified proportionality as the fundamental principle of sentencing (at para. 37);

(

b) identified both protection of the public and rehabilitation as the purposes of long-term supervision orders (para. 48); and (

c) that the severity of a given breach will depend on all the circumstances (para. 52). [ 45 ] The Crown points out that seven of Mr. Paul's breaches of his parole conditions were handled in a speedy and flexible manner. Sometimes he received short incarcerations and sometimes his release on parole was maintained but the Crown submits these techniques have not worked nor has the formal charging method either. [ 46 ] The Crown further submits that the accused has become a cause of the Gladue cycle and that if that cycle is to stop, he must stop drinking and abusing others.

The victims tend to be aboriginal women and he has also assaulted the child of an aboriginal intimate partner. [ 47 ] The Crown points out that in Ipeelee , supra , the Supreme Court interpreted s. 718.2 (

e) of the Code , as applying to the sentencing of offenders who breach LTSOs because it recognizes that an offender's impoverished childhood may reduce the moral blameworthiness of his adult behaviour; that judges must take judicial notice of systemic and background factors affecting aboriginal people in Canadian society, that the offender need not identify the specific harms in his childhood which caused the offending conduct and that custody is not always the best remedy. [ 48 ] The Crown points out that the Court must not only consider what the offender did, but "also what it portends in light of the offender's entire history of criminal conduct" ( R. v.

Deacon , 2004 BCCA 78 , 193 B.C.A.C. 228, para. 51 , aff'd in Ipeelee , supra , para. 55 ). [ 49 ] The Crown submits that Mr. Paul's conduct repeated the very activity which Mr. Justice Grist identified as likely to result in further violence. At the hearing before Mr.

Justice Grist, the experts agreed that the accused posed a high risk of re-offending but they differed whether treatment and supervision would reduce that risk to a manageable level. [ 50 ] The Crown submits that the accused returned to substance abuse in the community without any compelling trigger such as recent bereavement; and that the consequences of several past revocations and the conviction for breach of an LTSO has not motivated him to change his behaviour. [ 51 ] At the sentencing hearing, the defence expert, Dr.

Riar, stated that if an accused had programs, but then returned to the community and showed he does not care, then he needs supervision forever. [ 52 ] The Crown submits that the accused needs significant further rehabilitation which he has not achieved in the community since 1993. For this, Crown submits, a federal term of incarceration could be justified. [ 53 ] In the absence of the mitigating circumstances and in particular the guilty plea, a two year sentence, the Crown submits, would be appropriate.

Thus, applying the mitigating circumstances and taking the Gladue principles into account, the Crown submits that the appropriate sentence here is 18 months. Thereafter, the LTSO will continue for a further two years. [ 54 ] Lastly, the Crown points out that the Court in R. v. Wilson , supra , found that time served during an LTSO suspension should not be applied to a sentence imposed for a breach of the LTSO. The accused's parole suspension started on August 5th, 2011 and his remand time started on November 2nd, 2011.

Thus, this Court should take into account time served from November 2nd, 2011 to the date of sentencing, being September 14th, 2012 for a total of 318 days on a one day for one day credit. [ 55 ] The Crown has also made reference in his written submissions to extracts from the expert evidence of the doctors in the hearing before Mr. Justice Grist. The defence is content with the extracts found in the Crown's written submissions without the necessity of filing the transcripts of their evidence. [ 56 ] I would like to turn to the Gladue factors.

Judge McMillan pointed out in her reasons, commencing at para. 50, some information concerning Mr. Paul's background. However, in my view, the Court is required to benefit from a Gladue report and accordingly I ordered that one be prepared. [ 57 ] I would like to turn to the Gladue report prepared by Ms. Halie Bruce. It is a helpful report. [ 58 ] Mr. Paul is a 39-year-old status aboriginal member of the Nisga'a Nation. His father was a member of the Skwah First Nation in Chilliwack. His mother is a member of the Nisga'a Village of Gingolx.

He is the father of two children, sons, aged 23 and 22, who reside in Chilliwack and with whom he has some contact. He is the younger of two children and his older sister, Leanne Paul, died three years ago. [ 59 ] Mr. Paul does not recall the nature of his parents' relationship leading to their separation when he was four years old but he moved with his mother and sister to Edmonton from Chilliwack. He had no memory of his father for some time. There was in passing phone contact with his father when he was five years old. His mother and partner moved to Terrace when he was nine years old.

He recalls his mother as a hardworking woman who looked after and provided for his and his sister's needs. He did not witness violence between his mother and stepfather nor did he recall his mother drinking alcohol or abusing substances until he was 12 years of age. [ 60 ] His stepfather was the disciplinarian. He would be required to stand in a corner for hours after being disciplined. His stepfather also allegedly sexually abused Mr. Paul when he was six years old. [ 61 ] When Mr. Paul understood that his stepfather was sexually abusing his older sister, the siblings disclosed the abuse to their mother.

She attacked the stepfather and then left the relationship. He appreciated that his mother acted quickly to protect him and his sister. He has lost contact with his mother for the past several years but would be happy to see her again. [ 62 ] Mr. Paul's mother attended residential school. He has minimal contact with his paternal family. When his mother ended the

relationship with his stepfather, his mother moved him and his sister to Vancouver and there his mother started to drink alcohol to excess. Leanne, then age 16, decided to move to Chilliwack where she lived with her boyfriend. His sister also started to use alcohol to excess. [ 63 ] Mr. Paul was reunited with his father in Chilliwack and began spending time with his paternal family. This was the first time he was exposed to violence, alcohol, and substance abuse. His father had attended residential school.

His father discussed these experiences while intoxicated speaking of the abuse he had witnessed while in school. His father had been punished for speaking his aboriginal language while at school. [ 64 ] Mr. Paul and his mother moved in with his uncle on the Skwah Reserve when he was 14 years old. His uncle died and the accused continued to move between his sister's and father's houses. He described his sister's and father's homes as being chaotic and unstable, fraught with violence and substance abuse.

He witnessed his father and male relatives physically abusing their wives and using derogatory language towards women. He accordingly developed a belief system rooted in violence as the first response to any conflict. He attributed many of his past attitudes about women and his inability to cope with conflict to the behaviour he witnessed in those early years. [ 65 ] Mr. Paul met the mother of his sons when he was about 15 years old and his partner gave birth to their first son when he was 16. He felt confused and overwhelmed at the time.

He did not have a positive father figure in his own life and was frightened at the prospect of being a parent. A second son was born shortly after. Neither he nor his partner finished high school. [ 66 ] He and his partner moved in together with their children but the relationship broke down when they were 20 years old. He acknowledged that he mistreated his partner as his father and other family members had mistreated their partners. He subjected his partner to frequent physical and verbal abuse in response to any conflict. He was convicted of assaulting his partner, J.A., in 1991.

The two reconciled until he was again convicted of assaulting her in 1993 at which time they separated. [ 67 ] Mr. Paul tried alcohol for the first time when he was 12.

He said that alcohol and violence were the primary coping mechanisms he learned to apply to stressful situations including those that arose in his relationships. [ 68 ] He continues to struggle with alcohol dependence and this will likely be a lifelong struggle for him for which he will need ongoing support such as Alcoholics Anonymous. [ 69 ] His father died of cancer 12 years ago; their relationship having been marked by joint alcoholism over the 15 years they had together.

He also recalls the struggle his sister had with alcohol. [ 70 ] He did not receive counselling for the victimization that he received at the hands of his stepfather. He reported being impacted by his sister's death. [ 71 ] Mr. Paul has had sporadic contact with his sons with only one son, Matthew, now aged 23, showing any interest in establishing a relationship with him. [ 72 ] Mr. Paul reports being tired of the lifestyle he has led and described his alcoholism as a way of coping with his insecurities, frustration, trauma and grief. He has misgivings about his lack of education and his criminal history.

He applied two years ago for entry into a trades training course. That plan was thwarted when he went out of his restricted zone and was re-incarcerated. [ 73 ] A prior attempt at community reintegration in Vancouver failed when he would not abstain from alcohol use due to conflicts with his roommate. He coped with the conflict by buying and consuming alcohol in front of the staff of a lodge where he was staying. [ 74 ] Mr. Paul has expressed a desire to return to school to seek training in the trades and to reside outside of his home community.

He has expressed an interest in recovering his culture and traditions as one means of helping him to address his alcoholism. He did express that he would like to attend a culturally relevant treatment and alcohol recovery program to help him learn to cope with the childhood traumas and alcohol use he sees as linked to his criminal behaviour. He agreed that such work would be much more difficult than completing his sentence in jail. [ 75 ] Mr. Paul has no current family connections which would help to support his recovery.

He has had several significant long-term relationships which ended due to his behaviour and his alcohol misuse. He reported no supportive associates in the community. He does not believe he has a learning disability or physical challenges which would prevent him from succeeding in a course of studies. He is a registered member of the Nisga'a Village and may be eligible or educational funding through this community, or financial aid programs to promote First Nations education. [ 76 ] Mr. Paul has worked at short term employment positions over the years, mainly in the construction industry.

His employment efforts have been thwarted by his alcoholism and what he views as his criminal behaviour. He aspires to obtain training and work in the trades program on construction job sites. [ 77 ] The report writer acknowledges that Mr. Paul has undergone extensive treatment and counselling and gained insight into his behaviour.

He has received a diagnosis of anti-social personality disorder and depression for which he has received ongoing treatment and counselling. [ 78 ] The accused attributed his repeated failures to comply with the abstinence conditions of his long-term supervision order to his unresolved childhood trauma, grief, and temptations arising from his proximity to his former associates in his home community.

He acknowledged that a prior breach while in a community residential facility in the past resulted from his inability to deal with stress and frustration and that he continued to need assistance implementing the skills he has learned through treatment and counselling. He expressed a need to develop a comprehensive release plan into a new community away from Chilliwack, which plan he hopes would help him to prevent relapse and provide him with the chance to reintegrate into society. Mr. Paul then expressed that he does not feel that further residential treatment per se would assist him.

[ 79 ] Mr. Paul notes that he has not assaulted another person in the past eight years, but he admits that he has struggled with surviving when released near his associates. He believes that geography may play a role in his failure to comply with the past. He understands that he needs to address the reasons for his alcoholism in order to prevent future breaches. [ 80 ] He has completed a number of programs while incarcerated being aboriginal family violence, cognitive skills, aboriginal sexual offender, anger and emotions management, and aboriginal substance abuse. [ 81 ] Mr.

Paul admits that he breached the conditions of his LTSO and accepts responsibility for his behaviour. He is recommitted to his recovery program. He attributed his ongoing struggle with alcoholism to his unresolved childhood trauma and the loss of his sister. Mr. Paul is open and prepared to continue to tackle his childhood issues and grief and to learn to implement the coping skills he has learned in the past. [ 82 ] The report indicates that Mr. Paul is an intergenerational survivor of the residential school system.

He did not have the benefit of a stable family or the potential cultural support structures inherent within his traditions to help him navigate the challenges he faced in childhood. His family revealed many of the effects associated with the disconnect arising from the residential school experience. [ 83 ] He hopes that culturally appropriate recovery resources will aid him in establishing a support system as part of his recovery plan. However, Mr.

Paul does admit to having a poor community reintegration record, primarily due to what he characterized as his difficulty in resisting the temptations present in his home community with his former associates as well as the need to confront his childhood victimization and to understand the impact of the residential school system on his life. He thus does have insight into the causes and risk factors that have triggered his alcoholism and failures to comply.

He does acknowledge difficulty in avoiding risk factors and triggers to alcohol use. [ 84 ] The report goes on to enumerate the Gladue factors that are apparent in this matter. The writer also set out in keeping with the Gladue factors, as reaffirmed in Ipeelee , supra , the possible recovery programs available in British Columbia. They are: Circle of Eagles Lodge Society; Native Court Worker and Counselling Society in Vancouver; and Hey-‘Way’-Noqu Healing Circle located in Vancouver, Richmond, and the North Shore. [ 85 ] The Gladue report writer, Ms.

Bruce, concluded that it is likely that further incarceration alone will not have the desired effect in deterring future behaviour without additional culturally appropriate interventions designed to address Mr. Paul's background. Her report addresses the principles of restorative justice set out in Gladue . [ 86 ] I want to turn to the defence submissions. [ 87 ] Defence counsel seeks a 12 month term of incarceration. Counsel points out that the original order imposed by Mr.

Justice Grist was a five year order rather than the maximum term of ten years for an LTSO. [ 88 ] Defence submits that the accused was away from the Community Correctional Centre for only a relatively short period of time and no acts of violence occurred, even though he acknowledged he had been drinking. [ 89 ] The accused also does not agree that S.W. in the text messages was an intimate partner although the Crown states that S.W. told the police she was in fact an intimate partner. The accused claims to have known S.W. for many years. [ 90 ] Also, Mr. Paul did not make it hard for the authorities to find him.

The authorities knew about S.W. and easily found him. [ 91 ] I do accept that S.W. was an intimate partner for the purposes of this sentencing. [ 92 ] Counsel refers to Ladue, supra , and Ipeelee, supra , in urging the Court to impose a shorter sentence for this particular breach, in essence given the nature of the breach and the desire of the accused to leave the community of Chilliwack in order to find supports in another community such as Vancouver. Mr.

Paul is aware that he must take advantage of the supports ordered as part of the LTSO, and that the order will expire in a couple of years. [ 93 ] Counsel submits that the accused has gained insights into his behaviour; he has undergone extensive treatment in the past; he knows he is required to implement the techniques he has learned; and he recognizes he needs help with implementation. In that vein, Mr.

Paul recognizes that he needs further counselling and would prefer one-on-one counselling rather than group counselling. [ 94 ] I just want to turn to the Crown reply to the defence submissions. [ 95 ] In reply, the Crown points out that when the accused did return to the facility he had injuries on his body which injuries were unexplained. Also, the text messages suggest that he was drinking before he returned to the facility. He returned at 9:20 p.m. and left again about an hour later.

In other words, some of the messages were generated when he was planning to leave. [ 96 ] The Crown points to the evidence of the defence expert, Dr. Riar, who stated on March 2nd, 2004 the following: I believe that if he participates as well as benefits from various treatment programs, then his risk of re-offending would possibly drop significantly. [ 97 ] Dr. Riar went on to point out that the accused's expression of desire to change does not mean much and that what is more important is a practical demonstration of change.

Thus, the Crown submits, the accused's expression of desire to change, which has been typical over two decades, has not resulted in the cessation of criminal conduct. [ 98 ] I would like to turn to the case law. I would like to review some of the recent case law with respect to breaches of a LTSO. [ 99 ] In Matte , supra , the accused was a long-term offender and contrary to his LTSO took a pill from a fellow offender. The trial judge sentenced Mr. Matte to nearly a year in jail in addition to the time he had already spent in pre-trial custody. The accused was an

untreated violent offender with psychopathic tendencies. Mr. Justice Watt of the Court of Appeal of Ontario reviewed the governing principles. He stated the following at paras. 34 to 38: [34] In Ipeelee , a decision not available to the sentencing judge, the Supreme Court of Canada examined the principles that govern sentencing of offenders for breaches of LTSOs.

Although Ipeelee dealt specifically with Aboriginal offenders convicted of breaches of LTSOs, several principles of fundamental importance to all LTOs emerge. [35] First, long-term supervision, as a form of conditional release, has two specific objectives: i. protecting the public from the risk of re-offence; and ii. rehabilitating the LTO and reintegrating him or her into the community.

Ipeelee , at para. 48 . [36] Second, it is wrong to say that the main consideration in sentencing an LTO is the protection of the public and that significant sentences must be imposed even for slight breaches of LTSOs: Ipeelee , at paras. 48-49 . [37] Third, the severity of a breach of an LTSO depends on all the circumstances, including, but not only: i. the circumstances of the breach; ii. the nature of the condition breached; and iii. the relationship between the condition breached and the management of offender's risk of re-offence.

Ipeelee , at paras. 52 and 55 . [38] Fourth, rehabilitation will not always be the foremost consideration when determining a fit sentence for breach of an LTSO. The duty of the sentencing judge is to apply all the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing. The relative weight to assign to each sentencing principle or objective varies with the circumstances of the particular breach.

But in the end, the sentence imposed must be faithful to the fundamental principle of proportionality: it must be proportionate not only to the gravity of the offence, but also to the degree of the offender's responsibility: Ipeelee , at para. 51 . [ 100 ] The accused in Matte, supra , had breached his LTSO three times and he had violated the terms of his statutory release four times. Rehabilitation is not always the foremost consideration in sentencing for LTSO breaches ( Ipeelee , supra , at para. 51 ). [ 101 ] Mr. Justice Watt continued at para. 48: [48] Rehabilitation requires effort on an offender's part.

It cannot be force fed to the unwilling. It ill lies in the mouth of the unwilling to complain that rehabilitation should have been accorded a prominent place in the sentencing decision, particularly where, as here, the offender complaining has been unswerving in his resistance to rehabilitative efforts for several years. [ 102 ] In Ladue , supra , the B.C. Court of Appeal reduced a three year sentence for a breach of an LTSO to a one year sentence.

In Ladue , substance abuse was a trigger to illegal contact and placed the accused at risk to re-offend but he did not take steps on the path to re-offend before succumbing to his addictions. The Court held that a three year sentence was excessive and reduced it. The Court of Appeal found the sentencing judge had not given sufficient weight to the circumstances of the accused as an aboriginal offender. [ 103 ] In Ipeelee and Ladue , supra , the Supreme of Canada heard two appeals involving aboriginal offenders with long-term records. [ 104 ] Ipeelee was an alcoholic with a history of committing violent offences.

He was given an LTSO after being designated a long- term offender. After his release, Ipeelee committed an offence while intoxicated, thereby breaching a condition of his LTSO. He was sentenced to three years less six months of pre-sentence custody at a rate of one-to-one. The Court of Appeal dismissed the appeal brought by Ipeelee. Ladue, supra , was an appeal from the B.C. Court of Appeal noted above. [ 105 ] The Supreme Court of Canada held that the purpose of an LTSO order is twofold: to protect the public and to rehabilitate offenders and to reintegrate them into the community.

It is the sentencing judge's duty to adopt a contextual approach and to determine which sentencing options will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. Sentencing is an individual process.

The severity of a given breach will depend on all the circumstances including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of re-offence, and the circumstances of the breach. [ 106 ] The Supreme Court of Canada held that when sentencing an aboriginal offender, a judge must consider the factors outlined in R. v. Gladue : (

a) the unique, systemic, and background factors which may have played a

part in bringing the particular 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 particular aboriginal heritage or connection. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Gladue principles require that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the accused's life experiences.

Section 718.2 (

e) of the Code is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to aboriginal peoples. [ 107 ] Accordingly, as I have stated, I ordered the Gladue report which I have found both thorough and helpful. Indeed, Ms. Bruce wrote two reports, one of which is an amendment of the first, and I have had the opportunity of reviewing both of her reports. [ 108 ] The Supreme Court of Canada in Ipeelee , supra , found that the courts below made several errors, in particular in concluding that

rehabilitation was not a relevant sentencing objective. A sentence of one year jail was substituted. [ 109 ] In the case of Ladue , supra , the decision of the majority of the B.C. Court of Appeal was well founded and reflected the principles and objectives of sentencing. [ 110 ] In R. v.

Larocque , supra , the appellant, a long-term offender, sought leave to appeal a global sentence of 30 months imprisonment following his guilty pleas to two counts of breaching conditions of his long-term supervision order, being the use of a computer without prior written permission from his parole officer, and failing to reside at a specific facility, both contrary to s. 753.3(1) of the Code . The sentencing judge relied on R. v.

J.A.H. , 2009 NLTD 30 for its approval of seven principles to consider in sentencing for breaches of long-term supervision orders. [ 111 ] The Court of Appeal in Larocque , supra , considered the sentencing decisions of the Supreme Court of Canada in Ipeelee , supra , and Ladue, supra . The Court of Appeal imposed a six month sentence for the computer breach, and a 24 month sentence for the residency breach, after giving credit of 47 days for time served. The Court found that the residency breach was central to the appellant's management.

In Larocque , the Court followed Ladue and the Supreme Court of Canada decisions in Ipeelee and Ladue , but disagreed with the suggestion that rehabilitation is always a less important sentencing factor. [ 112 ] Firstly, I am mindful that a long-term supervision order has two specific objectives, being: firstly, protecting the public from the risk of re-offence, and secondly, rehabilitating the offender and reintegrating him into the community.

Furthermore, significant sentences need not be imposed even for slight breaches in long-term supervision orders. [ 113 ] Here, the breach would normally be considered serious as the Code does provide for a ten year maximum sentence for a breach of a long-term supervision order. But as Mr. Justice Watt stated in Matte , supra , the severity of the breach does depend on all the circumstances. Here, the circumstances of the breach involve Mr. Paul's failure to abide by a central term of the LTSO, being as abstention condition, as well as a condition that he report intimate relationships to his parole officer.

He also failed to remain at the Community Correctional Centre. [ 114 ] Mr. Paul then attempted to lie his way out of trouble by telling his parole officer that he had not been drinking and that three men had abducted him, and it was known that he had injuries. He described his relationship with S.W. as her being only a friend and has maintained that position. She, on the other hand, told the parole officer that she was in an intimate relationship with him.

For the purposes of this sentencing, I accept the Crown's position that S.W. was in fact an intimate partner. [ 115 ] I agree with the Crown's submissions that the mitigating factor is that the accused pleaded guilty to this charge, that his aboriginal background must be taken into account.

Accordingly, I ordered the Gladue report. [ 116 ] The aggravating factors are that the accused has previously been convicted of the same offence, has repeatedly breached his LTSO in similar ways, fled the facility when first caught, tried to persuade his intimate partner to hide him, and then presented a complex lie to the authorities when he was caught. Mr.

Paul thus violated three of the conditions imposed on him, the abstention, reporting intimate relationships and the residency requirement. [ 117 ] Furthermore, there is a relationship between the conditions breached and the management of his risk to re-offend as set out in the Corrections Canada materials and the other materials filed by the Crown. [ 118 ] Mr. Paul has attended years of counselling but such counselling has not changed his behaviour. He seems to have an appreciation that he has learned techniques to be applied but has failed to implement those techniques. Mr.

Paul does need further rehabilitation which he has not successfully achieved in the community programs that he has attended in the past. [ 119 ] I have considered all the sentencing principles set out in s. 718 to 718.2 of the Criminal Code including s. 718.2 (

e) in order to devise a sentence. I am also mindful of the fundamental principles of proportionality. The sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. I have further considered that in August, 2010 Judge McMillan imposed a sentence of 15 months for a similar breach of the abstention provision. [ 120 ] A federal term of imprisonment could be justified However, I agree with the Crown that given the mitigating circumstances of the guilty plea and the Gladue principles, a fit sentence for the Court to consider here is 18 months. Thereafter, Mr.

Paul, your LTSO will continue for approximately two more years. [ 121 ] If you would stand Mr. Paul. I sentence you to a period of 18 months incarceration. I am prepared to give you credit for the pre- sentence time served of 318 days from November 2nd, 2011 to today's date, on a one-for-one basis, leaving a sentence to be served of 229 days. Lastly, pursuant to s. 743.1(3.1) of the Code , the sentence is to be served in a penitentiary. [ 122 ] I waive the victim fine surcharge. “W.A. Young J.”