R. v. S.F. Date:, 2015 BCPC 314

Citation: R. v. S.F. Date: 20150605 2015 BCPC 441 File Nos: 58648-1, 58685-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.F. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: H.W. Chambers Counsel for Federal Crown : L. Dumbrell Place of Hearing: North Vancouver , B.C. Dates of Hearing: November 12, 2014; January 21, February 18, 24 and June 5, 2015 Date of Judgment: June 5, 2015

[ 1 ] THE COURT: On September 10th, 2014, S.F. pleaded guilty to two counts on two separate Informations in First Nations Court. A pre-sentence report was ordered and the sentencing proceeding took place on February 18th, 2015. The matter was then adjourned for decision. The delay to June was due to counsel's availability. [ 2 ] The first offence in time is trafficking in cocaine contrary to s. 5(1) of the CDSA between June 12th and September 28, 2012, in Whistler. The matter is indictable and carries a maximum sentence of imprisonment for life. A conditional sentence is available.

This matter proceeded through a preliminary inquiry and was set for trial in Supreme Court in September of 2012. [ 3 ] The second offence in time is an aggravated assault of S.C. contrary to s. 268(2) of the Code which occurred on October 4, 2012, in Whistler. The Crown proceeded by indictment. The maximum sentence is 14 years and a conditional sentence is not available. Circumstances of the Offences [ 4 ] In December of 2010, an undercover officer encountered Mr. F. in the village. Mr.

F. approached him and offered to sell him "rock, powder, or pills." The officer declined, but was provided with a telephone and was told Mr. F.'s name was Jimmy Jones. In November of 2011, the same undercover officer encountered Mr. F. in the village and again the offender offered drugs for sale. The officer said he was not in need at the moment, but asked if Mr. F. could get him an ounce of cocaine and was told, "No problem." [ 5 ] Following this encounter, the police commenced an ongoing investigation into the activities of Mr. F. and others suspected of trafficking in the Whistler area.

Over late 2011 and through 2012, the police purchased drugs from Mr. F. on three occasions and an associate on one occasion. They purchased two grams of cocaine on June 11, 2012, in the village; 22.4 grams of cocaine on August 22, 2012, at the home of Mr. F. in [omitted for publication]; and 3.96 grams of cocaine on September 28, 2012, in the village. [ 6 ] Cellphone records were obtained which provided evidence of a "dial-a-dope" trafficking scheme. One of Mr. F.'s trafficking associate's homes was searched and drugs and money were found. Mr.

F.'s cellphone was later used to set up other buys from his associates. [ 7 ] The aggravated assault occurred prior to his arrest in mid-January of 2013 on the trafficking offences. The victim and three male friends were on a weekend golf holiday at Whistler. They were consuming alcohol, powdered cocaine, and ecstasy. In the late evening of October 4th, they were at a bar playing pool. The offender approached them and offered to play them for the table. Mr. F. won and then suggested they owed him a drink. A drink was purchased for him, but he declined to drink it suspecting it might be spiked. According to Mr.

F., more games of pool were played and he won $50 which was paid to him and they all went their separate ways in the bar. [ 8 ] The bar closed at 2:00 a.m. and, once outside, Mr. F. approached Mr. C.'s group about having won at pool. Mr. F. believes the men felt they had been "hustled" and were upset. Mr. C. made an offensive comment to the effect that Mr. F.'s sister was a whore. Mr. F. took offence to the comment and said words to the effect, "Take it back or say it again," and threatened to hit Mr. C. and, without warning, then hit him in the face. [ 9 ] Mr. C. fell back and cracked his head.

He did not have an opportunity to defend himself or brace his fall. Tragically, he suffered a significant brain injury. At the scene, he was bleeding from his ear and the wound to the back of his head. He was immediately transported to Vancouver for surgery. A piece of his skull was removed to relieve the pressure on his brain and to remove accumulated blood. Some of his brain tissue had to be removed and he was in a medically-induced coma for two weeks. [ 10 ] Mr. F. fled the scene and was located in a taxi. He was identified by other patrons who were familiar with him.

He says he was unaware of the extent of Mr. C.'s injuries and left because he felt intimidated by Mr. C.'s friends who were larger than Mr. F. and physically fit. [ 11 ] Mr. F. suggests that Mr. C.'s hands were raised immediately before he struck him. However, there is no evidence from any other witnesses that Mr. C. made any gestures or said anything to cause Mr. F. to believe he was in imminent danger of being assaulted by him. [ 12 ] I have disabused my mind of an allegation made by the Crown that Mr. F. engaged in an unprovoked assault by punching another male in another bar earlier in the evening. Mr.

F. denied that aggravating factor and the Crown chose not to pursue it further. Victim Impact [ 13 ] Mr. C.'s recovery was slow and required many months of therapy at GF Strong and in the community. Thankfully, he has recovered most of his physical functioning. However, he is left with numerous other issues. He has permanent scarring on his scalp. He has ongoing emotional and psychological issues. In addition, his speech was affected and he has only recovered 80 percent of his ability to speak and will not likely recover more than 90 percent.

He suffers from short-term and long-term memory deficits. [ 14 ] In the spring of 2013, he began experiencing grand mal seizures and is required to take medication to control them. As a result, he was unable to drive for 18 months as he is not permitted to do so for six months after any episode. It is likely he will suffer from epilepsy for the rest of his life. He also has frequent headaches. He is required to spend a great deal of time dealing with medical appointments and adjustments to his medication regime. [ 15 ] Mr. C. is an arborist and lost income during his convalescence and therapy.

He is only able to work three days a week. He and his wife have a child who is now four and was one-and-a-half at the time of the assault. Mr. C.'s injury has significantly impacted his ability to parent and his ongoing condition causes concerns about what would happen to his child if he were to be caring for him and had a seizure. His wife and family and friends have also been impacted by his injuries. Antecedents of the Offender

[ 16 ] Mr. F. is 38 years of age. Through his mother, he is a member of the [omitted for publication]. His biological father was not Native and left the family when the offender was two and Mr. F. has had little contact with him since. His mother raised him and a half- brother in Prince Rupert alone until he was age six, at which time, his mother remarried. His stepfather was also not Aboriginal. He was a good provider and a good role model. [ 17 ] Mr. F. was sexually abused by three different perpetrators commencing at age three and up to age 12. He testified against one when he was 13 years old.

His mother apparently did not believe him when he reported the abuse. His mother and grandmother were also victims of sexual abuse. His mother reports that Mr. F. went hungry and that she abused him physically and verbally when he was a child and he was exposed to other abuse by his grandmother. The adults in his life, save for his stepfather, were alcoholics. [ 18 ] In his early teens, Mr. F. was acting out and spent time in youth custody. He then went to live with his grandmother. He remained in Prince Rupert until age 20. In his late teens, he had a relationship which produced a daughter who is now 17. Mr.

F. raised her and she now lives on her own. When he was 23, he moved to [omitted for publication]. He has been in a very positive 14-year common law relationship. He and his wife have three children age 20, a stepson to Mr. F., age 12, and age 8. [ 19 ] He has obtained a Grade 12 education and took chef's training, first aid, and a haul truck course. He reported that he would like to finish his haul truck training and work in the oil industry.

He reported working for a construction company in Kitimat from August 2013 to May 2014 and more recently for a construction company in a camp in the Pemberton area for two months. [ 20 ] He remains close to his brother, but advises he is not currently close with his mother or stepfather. He is also close to a childhood friend. [ 21 ] Mr. F. began abusing drugs and alcohol in his early teens. Over the years, he has experimented with crack, methamphetamine, and heroin. He has also used marihuana.

He reported that while he was gambling in Whistler, which occurred three to four nights per week, he was consuming one to two grams of free cocaine each night and drinking heavily. He said the cocaine was given to him by friends. Mr. F. said he does not drink or use drugs in his home. [ 22 ] He reports that he stopped using cocaine after the charges arose and he only consumes alcohol once or twice per month. He takes OxyNEO or morphine for back pain as needed. He says he now spends his free time with his family. Mr.

F. reported that he does not believe he has an addiction problem at present, but would not be opposed to attending residential treatment. He has not sought any counselling or treatment over his life, except for a brief period of counselling following his testimony in court at age 13. Mr. F. attended some appointments with a drug and alcohol counsellor in Mount Currie while on bail, but then missed some appointments and has not rescheduled. [ 23 ] Mr. F. has a criminal record from when he lived in Prince Rupert which begins at age 13 in 1991 and ends in 1997.

There is a conviction in 2002 for a break and enter from 1997. His record includes break and enters, property offences, two assaults from 1993, and some failures to comply. In October of 2013, he was convicted of one count of breach of his bail on these matters which is referred to below. [ 24 ] Mr. F.'s mother was adopted out to a white family in the "60s scoop." His grandmother attended residential school.

The Band and Nation were impacted by the assimilation policies which resulted in a breakdown of their culture and families and which has spawned widespread violence, substance abuse, sexual abuse, and poverty. Mr. F. and his mother and brother were the subjects of the racism by the dominant culture and by other First Nations because of their mixed race relationship or parentage. Breaches of Terms of Release [ 25 ] On July 1, 2013, Mr. F. was found attending the movies in Whistler contrary to a term that he was not to be found within the Resort Municipality of Whistler after 8:00 p.m.

As indicated, he pled guilty to that charge in October of 2013 and received a fine. [ 26 ] On November 30, 2014, he was found at a grocery store in Whistler with his son. That matter was dealt with by way of a s. 524 warrant and he was re-released after a finding. [ 27 ] On December 31, 2014, he was found working as a bouncer in a bar in Pemberton. He had been told by his bail supervisor in advance that taking that employment would be a breach of his bail on the aggravated assault.

A breach of recognizance charge was laid and, as a result of his failure to comply with the term of his probation which prohibited him from attending any bars, pubs, liquor stores, or other such licenced premises. The Crown has elected not to proceed with that charge, although the facts were before the court as an aggravating circumstance. [ 28 ] In addition to these breaches, on July 30, 2014, Mr. F. was placed on a s. 810 recognizance as a result of an incident which occurred on October 23, 2013, in Mount Currie. He was on bail for the aggravated assault at the time, and the drug offence.

He attended the male complainant's home and told him he would arrange for someone to break into his home and beat him in front of his girlfriend and baby unless the male turned himself in for an offence Mr. F. believed he had committed. Response to Bail Supervision and History of Compliance [ 29 ] Mr. F.'s reporting on bail was described as intermittent. Positions of Counsel [ 30 ] The Federal Crown submits that a sentence of 18 months' institutional incarceration or a 24-month CSO is appropriate. A s. 109 firearms prohibition is mandatory for a period of 10 years.

They ask for a DNA sample to be ordered as this is a secondary designated offence. They also ask that a fine in lieu of forfeiture be imposed in the amount of $2,080 which is the amount the undercover officers paid to Mr. F. for the purchase of the drugs which form the subject matter of the charge.

[ 31 ] Federal Crown submits that the principles of sentence to be given the greatest weight are denunciation and general deterrence. They point to many aggravating factors in this matter. Mr. F. was importuning strangers in the village to buy highly deleterious illicit drugs. He was part of an ongoing dial-a-dope scheme from late 2010 until the fall of 2012. He was trafficking in relatively large amounts of cocaine and the motivation for his involvement was greed. They also point to the insidious impact that the use of such substances has on the community. They also say that Mr.

F.'s conduct on bail should be considered as a reflection of his failure to take responsibility and an indication of a lack of appreciation for the seriousness of his criminal offences. [ 32 ] The Provincial Crown submits that a sentence of three to four years is appropriate for the aggravated assault. They also say the principles of denunciation and general deterrence should be given the greatest weight.

They ask the court to order that a sample of DNA be provided as this is a primary designated offence and for a lifetime firearm prohibition pursuant to s. 109 as it should be concurrent to that imposed for the trafficking offence. [ 33 ] The aggravating factors are that the assault was unprovoked save for an insult of no import. Mr. F. has a sister through his father who he has met on one occasion in his life. Mr. F. struck Mr. C. with significant force in the head and the serious consequences to Mr. C. must be considered.

The offender has also acted out aggressively in the community since the offence resulting in the application for a s. 810 recognizance and has not been completely compliant with his bail terms and his reporting requirements. [ 34 ] Counsel for Mr. F. submits that his guilty plea should be taken into account as mitigation even though he elected to proceed with a preliminary inquiry and did not enter that plea early. There is no explanation for the delay in entering his plea on the aggravated assault, although I expect he wished to deal with the two matters together for sentencing. [ 35 ] Mr.

F. also says that although he was not addicted to cocaine, he had become dependent on it at the time of his offences and was engaged in selling it to support his habit. [ 36 ] Mr. F. has not engaged in any further assaults or other violence other than that which gave rise to the s. 810 recognizance. He has stopped dealing drugs and playing cards and pool for money. He also reports staying clean and sober for nearly two years. He has been employed, although sporadically, and has been contributing to the support of his family. [ 37 ] Mr. F. expressed his remorse in the pre-sentence report and again in court.

Counsel for the Crown argues that he has not clearly and sincerely expressed his remorse and responsibility for the very significant injury he caused Mr. C. In many cases and for many reasons, it is not possible to determine the degree of remorse an offender may feel. In this matter, I accept that Mr. F. did not intend to cause Mr. C. significant injury and he may have difficulty accepting that a single punch could have brought about such serious consequences. In any event, the absence of remorse is not an aggravating factor.

The Law [ 38 ] The principles of sentence are set out in s. 718 to 718.2 of the Code and I have considered them all. I have also considered the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I have considered the aggravating and mitigating factors including Mr. F.'s guilty pleas as identified by counsel in their submissions. I have carefully considered the cases of Gladue and Ipeelee and the requirement of s. 718.2(

e) that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered with particular attention to Mr. F. as an Aboriginal person. Sentencing Considerations and Range for Trafficking Offences [ 39 ] Regina v. Barrick , 2012 BCCA 83 , is a recent case dealing with the sentencing range for similar offences. In that matter, the accused was arrested for trafficking after selling three spitballs to a police officer. He was released. Three-and-a-half months later, he was stopped in his vehicle and found in possession of seven spitballs weighing 3.2 grams.

At paragraphs 11 to 12 [sic, 12 to 13], the court considers the factors to be considered when determining whether to impose a CSO: [12] Conditional sentence orders have been imposed in some dial-a-dope cases. However, as correctly noted by the sentencing judge, conditional sentences are not appropriate when they would not meet the general sentencing principles of deterrence and denunciation. [13] By their nature, dial-a-dope operations are difficult for the police to detect, and they make cocaine and heroin – drugs with insidious social effects – more readily accessible.

Generally speaking, they should be discouraged by the imposition of custodial sentences: see R. v. Rastgoei [and other cases and cites following] ... I am not persuaded that this is one of the cases where the principles of deterrence and denunciation would be met by a non-custodial sentence. At paragraphs 21, 22, and 23, the range of sentence is discussed: [21] This leads me to a consideration of the appropriate consecutive sentences for the drug offences committed by the accused. Madam Justice Levine discussed the range of sentences for dial-a-dope offences in R. v.

Martinez [cite following] ...: [16] ... the range of sentences of incarceration for drug trafficking offences similar to this one is as low as six months [sorry, see R. v. Vu and other cases and cites following, and finally] ... (this Court reduced the prison sentence from 14 months to 10 months, but the offender had been in prison for a couple of months before being sentenced)).

[22] Other cases similar to the present case include R. v. To ... Tran , ... Rastgoei [and] ... Walkley ... [In Walkley , the court] upheld a 15-month sentence but, in that case, the offender did not have an addiction and was motivated solely by greed. I consider the effective sentence of 15 months’ imprisonment for the appellant’s first offence to be outside the range of sentences for similar offences and similar offenders. [23] In my opinion, an appropriate sentence for the appellant’s first offence is nine months’ custody.

His first offence is an aggravating factor for the purpose of a sentence for the appellant’s second drug offence and, in my opinion, an appropriate sentence for the second offence is 12 months’ custody. [ 40 ] Crown counsel also relied on R. v. Ali , 2010 BCCA 4 ; R. v. Tran , 2007 BCCA 613 ; R. v. Shusterman , 2012 BCSC 362 ; R. v. Sandher , 2008 BCSC 263 ; R. v. Charlie , 2008 BCCA 44 ; and R. v. Charleyboy , 2010 BCCA 530 . Defence counsel relied upon R. v. Kozma , 2000 BCCA 440 ; R. v. Bui , 2001 BCCA 471 ; and R. v.

Clough , 2001 BCCA 613 . [ 41 ] I have considered all of these cases and find a range sentence for a first offence of trafficking in cocaine by way of a dial-a-dope operation in low to mid-level amounts is between six to 18 months.

Sentences at the higher end of the range were imposed where the offence involved ongoing involvement, larger amounts, and the offenders were not addicts. [ 42 ] The cases make clear that conditional sentence orders are "not favoured" in dial-a-dope cases due to the need for general deterrence and denunciation; see Rastgoei and Tran and paragraphs 6 to 8 . [ 43 ] The decision of Charlie involves a youthful Aboriginal who engaged in a trafficking offence while serving a CSO for a previous trafficking offence. He was granted a second CSO due to his youth and efforts and rehabilitation and due to the passage of time.

His Aboriginal background was considered to be a mitigating circumstance when the Court of Appeal determined the sentence was fit in all the circumstances. Sentencing Considerations and Range for Aggravated Assault [ 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 , 2011 BCSC 629 ; and R. v. Craig , 2005 BCCA 484 . Defence counsel relied on R. v. Hansen , 2004 BCSC 2014 [sic, 2014 BCSC 625 ]; R. v. Paquette , 2012 BCSC 1497 ; R. v. Nakamura , 2012 BCSC 327 ; and R. v.

Lewis and Lewis , 2014 BCPC 93 . [ 45 ] These cases are not on point with respect to the facts or offenders. The most helpful case is Hansen which will be addressed later again in these reasons. In that matter, an Aboriginal female with a limited record was granted a 90-day intermittent sentence and probation for an aggravated assault involving striking another female several times with a broken bottle. The victim owed the offender $200 for a drug debt and the offence occurred on the Downtown Eastside of Vancouver.

The victim suffered long-term psychological injury and some physical difficulties. [ 46 ] After the arrest, the accused in that matter turned her life completely around. She had suffered through a very traumatic and difficult childhood involving alcoholism, neglect, and abuse. She had successfully served a 12-month CSO and had remained clean and sober. She had pursued job training and been employed. She also became pregnant and gave birth to a child who she was raising. She had sought and accepted the assistance of the Atira Program with her pregnancy and the child.

An older teenage child had returned to live with her and she was providing a home for another teen in need. [ 47 ] The court found that her moral culpability arising from her circumstances as an addiction-driven trafficker was lessened and that her current circumstances were compelling in terms of the damage that would result from any lengthy incarceration.

The court also took into account that such a sentence would assist in the healing of the large Aboriginal community in the area. [ 48 ] In Paquette , the offender struck and then kicked a security guard who worked at the SRO hotel he resided in on the Downtown Eastside causing him serious harm including a brain injury. The offender was Métis and came from a disadvantaged and traumatic background. He had a lengthy history of criminal conduct including violence.

He met the criteria for a number of personality disorders, was in the low to moderate range of cognitive abilities, had a number of serious health issues, and was suspected to suffer from foetal alcohol syndrome disorder. [ 49 ] Four years had passed between the time of the offence and the sentence. During that time, he had not committed any further offences and had managed his addiction successfully. He had reconnected to his Aboriginal heritage and was planning on pursuing a First-Nations-oriented treatment program.

There were positive prospects for rehabilitation with the appropriate supports and programming in the community. He would not benefit from any way from the programming available in custody. He was sentenced to a period of two years' imprisonment and two years' probation. [ 50 ] Nakamura involves an 18-year-old first-time offender who attacked another male they were buying drugs from. He had very positive prospects for rehabilitation and was granted a suspended sentence of two years with other rehabilitative and restorative terms.

I do not find this case of assistance given the age of the offender and the principles as they apply to such a youthful offender. [ 51 ] Lewis involves a break and enter to a residence committed by two adult Aboriginal brothers who were intoxicated. One was also facing a shoplifting charge and an assault-of-a-peace-officer charge. They participated in a lengthy First Nations Court proceeding and had each effected their rehabilitation at the time of sentencing. [ 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. [53] In C.A.M., R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, Lamer, Chief Justice of Canada, suggested that theconsequence of the crime is a factor that should be taken into consideration in imposing sentence.

He said at paragraph 80: Retribution in a criminal context ... represents an objective, reasoned and measured determination of an appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender's conduct [emphasis in original]. [54] In R. v.

Johnson, 116 B.C.A.C. 279, Madam Justice Ryan commented on this oft-quoted passage from C.A.M. at paragraph 33: It is clear from this passage that a determination of moral culpability, for purposes of sentencing, includes an examination of theintentional risks taken by the offender, the harm he or she has caused, and the degree of deviation from acceptable standards of behaviourthe conduct represents. [55] In R. v. Woodward, 2011 BCCA 251, at paragraphs 31 and 32, the court said: [31] Lastly, Mr. Woodward submits that the sentencing judge placed too much emphasis on Mr. Dowrey’s injuries.

He says therewas an “element of chance” involved in this offence and that it is unusual for victims of a single punch to sustain injuries that affect themfor the rest of their lives. [32] Once again, the facts do not support this submission. As previously mentioned, Mr. Woodward went out of his way to deliver apunishing blow to a person who could not have anticipated being attacked and was, therefore, completely defenceless. While Mr.Woodward may not have intended to change Mr. Dowrey’s life forever, he did intend to harm him by using force that Mr.

Woodwardknew, or ought to have known, had the potential to inflict serious injury. The fact that this was, to use Mr. Woodward’s terminology, a“one punch assault” does not lessen the gravity of what he did. Analysis and Sentences to be Imposed [56] In Barrick, the court was dealing with two distinct offences and, at paragraph 17 and 18, said: [17] The proper approach for sentencing an offender for multiple offences was described by Madam Justice Smith in R. v. Li [citefollowing] ...: [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences.

The first stage is to determine theappropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. Ifconsecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totalityprinciple. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjustedin order to arrive at an appropriate global sentence. See R. v. P.P.H. [cite following] ...

The totality principle referred to by Smith J.A. is expressed as a sentencing principle in s. 718.2(

c) of the Criminal Code: “whereconsecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. [18] The test for determining whether consecutive or concurrent sentences are appropriate is “whether the acts constituting theoffence were part of a linked series of acts within a single endeavour”: R. v. G.P.W. [cite following] ... It is not uncommon for anoffender who has committed a series of similar drug offences within a relatively short period to receive concurrent sentences because theoffences are considered to be part of a linked series of acts.

What distinguishes the present situation, in my view, is the appellant’s arrestfor the first offence before he committed the second offence and the period of three and one-half months between the two offences. [57] I find that the offence of trafficking committed by Mr. F. is aggravated by his ongoing involvement and the relatively largeamount trafficked on one occasion. I find his involvement was not merely as a street-level seller as he trafficked 22 grams from his ownresidence. [58] In R. v. Campbell, 2009 YKTC 87, Cozens J. was sentencing a middle-level trafficker of Aboriginal background.

At paragraph11, he said: While there is also evidence in the pre-sentence report and in his own comments to the Court that Mr. Campbell has a serious drugaddiction, the evidence falls short of persuading me that Mr. Campbell is an addiction-driven trafficker. A drug trafficker with anaddiction problem can nonetheless be an addict who trafficks for profit without necessarily being an addict-driven trafficker. I considerMr. Campbell to be a profit-motivated drug trafficker who has a drug addiction problem. [59] I find this description apposite with respect to the circumstances of Mr.

F. and I find he trafficked primarily for profit. [60] Hitting another person in the face or head with significant force and without warning, colloquially referred to as "sucker-punching," is conduct which has a clearly foreseeable risk of causing serious physical harm both from the blow itself and from falling.

Any blow to the face or head is capable of causing serious injury, in particular, trauma to the brain and/or damage to the organs and structure of the face. Those who engage in such conduct are responsible for the injury they bring about regardless if they intended to occasion any harm at all.

The moral blameworthiness for such an offence is high. [ 61 ] I find that general and specific deterrence and denunciation of this kind of gratuitous violence, and particularly when it involves striking people in the head, must result in a sentence which will send a strong message that such conduct is utterly unacceptable in our society. I further find that the nature of this offence places it in the middle of the range of sentences as articulated in the cases referred to and a sentence of three-and-a-half years is appropriate. [ 62 ] In coming to this conclusion, I have given Mr.

F.'s criminal history little weight given the 15-year hiatus from his last offence. [ 63 ] In accordance with s. 718.2(

e) and the Supreme Court of Canada decisions of Gladue and Ipeelee , I must also consider all of this offender's past and current circumstances to determine if his moral culpability or blameworthiness for these offences is reduced as a result of his Aboriginal background and whether the sentence should be impacted in some way as a result. As was said in Ipeelee , I must use a different method of analysis to determine a fit sentence for this Aboriginal offender. [ 64 ] In R. v.

Hansen , supra , the court observed at paragraphs and 35 and 37: [35] In Ipeelee , the Court provided further direction on the rationale behind the first of these considerations. The Court noted at para. 73 that the systemic and background factors may have a bearing on the culpability of the offender by shedding light on his or her level of moral blameworthiness. The Court went on to approve the approach taken in R. v.

Skani [cite following] where Greckol J. described the background circumstances of an offender: ... “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ. [said] in Gladue , at para. 69: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. ... [37] In Ipeelee , the Court noted that it would be difficult, if not impossible, for an Aboriginal offender to establish a direct causal link between his or her circumstances and his or her offending. At para. 83, the Court emphasized: ... Furthermore, the operation of s. 718.2(

e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. [ 65 ] Mr. F. was exposed to alcoholism and the intergenerational trauma experienced by our First Nations people. This was and is the direct result of colonization and the assimilation policies carried out by the Canadian Government for generations.

As a child, he was the victim of neglect and abuse at the hands of his caregivers and he was repeatedly sexually assaulted while his caregivers failed to believe him or protect him. He had early exposure to alcohol and drug use. He has also experienced prejudice as a First Nations person and as a mixed race person. [ 66 ] As a young adult, Mr. F. managed to address his psychological, emotional, and substance abuse issues without counselling or treatment and continued to manage them for many years. This is reportedly due to the positive relationship he has with his wife.

He was also able to support himself and contribute to the support of his family. [ 67 ] At age 34, after losing his employment due to an injury, he fell prey to the easy money involved in gambling and then trafficking drugs. The offences before the court are the result of his choice to involve himself in the dissolute and antisocial lifestyle which he continued to engage in for several years. [ 68 ] There have not been any restorative or rehabilitative plans put before the court which involve Aboriginal cultural practices or justice principles.

There is no information from the [omitted for publication] to which he belongs through his wife and children, nor is there any information of the [omitted for publication] Band or the [omitted for publication] Nation. There is no evidence he is involved in any Aboriginal cultural practices as an adult. [ 69 ] Mr. F. does not face any cognitive or other intellectual issues. Other than ADHD as a youth, he has not had any significant mental health issues. Mr. F. does not see the need to pursue treatment, but will participate if ordered to do so.

He has made only desultory attempts to address his underlying issues through counselling while on bail. He simply wishes to "work" to support his family. [ 70 ] It is of concern that Mr. F.'s wife is unable to be contacted by the probation officer. There is no explanation why this is so. As a result, the only information about the current lifestyle and habits of Mr. F. is self-reported. His employers were also not contacted.

[ 71 ] Mr. F. was not forthright with the probation officer who prepared the report who apparently was not advised by the court registry about the guilty plea on the trafficking matter. When interviewed, Mr. F. did not disclose that he had the trafficking matter outstanding. Rather, he portrayed his time spent in Whistler as involving only gambling or playing pool for money and abusing cocaine. He also misled the preparer of the report with respect to how he had been supporting himself up to the time of the offence. [ 72 ] Considering all the information before me and Mr.

F.'s dissimulation with the preparer of the pre-sentence report, I do not accept that his own self-report proves to the balance his account of being a contributing and involved father and husband given that he was dealing drugs and ingesting large amounts of cocaine and alcohol in Whistler three or four nights per week.

I note that on one occasion, he sold a large amount of cocaine out of his family home on reserve lands. [ 73 ] On the other hand, there is nothing to suggest that his efforts at staying clean and sober and not "hustling" at cards and pool in Whistler since his arrest is not correct and, on the balance, I find he has established that mitigating factor. I also find that he is making efforts to obtain legitimate work to support his family. [ 74 ] In all the circumstances, I find Mr.

F.'s moral culpability for the aggravated assault to be reduced only to a limited extent by his background due to the context of the offence. [ 75 ] Mr. F. was involved in playing pool for profit in a resort town. This was his habitual occupation when not dealing drugs. He hustled the victim and his friends and then, contrary to his assertion that he was intimidated by them, approached them outside of the bar. His apparent reason for approaching them was to speak about having beaten them at pool and taken their money.

He then reacted to meaningless insult with violence. [ 76 ] There is little connection between his Aboriginal background and life circumstances and his decision to punch Mr. C. Rather, I find he did so simply because of his injured pride. However, his abuse of substances and psychological frailty resulting in his inability to control his reaction is the result, I find, of his Aboriginal background and upbringing and it is this which reduces his blameworthiness. [ 77 ] I find that his moral blameworthiness for the trafficking charge is reduced only to a limited extent by his experience as an Aboriginal person.

Trafficking in illicit substances by means of a dial-a-dope operation involves criminality and being complicit with others. This offence was committed primarily for the purpose of money. When an offender is not an addict, it is a coldly calculated form of crime. [ 78 ] In all the circumstances, I am unable to craft an innovative sentence which would take into account the underlying factors that have brought Mr.

F. before the court or which would serve rehabilitative or restorative aims or promote healing in the community in which he lives. [ 79 ] I am able to apply the principle of restraint and will do so while also taking into account the principle of totality in the sentence imposed for both offences. I have attempted to balance the need for deterrent and denunciatory sentences for these offences and the serious and lasting injury to Mr.

C. with the Aboriginal background of this accused and all of his life circumstances including his ability to conduct himself prosocially in the community and his ongoing and positive prospects for rehabilitation. [ 80 ] I am mindful that his incarceration in an institution may well cause both financial and emotional hardship to his family which could result in more disadvantages for his wife and children. I am also mindful that the incarceration for Mr.

F. will be more difficult than if he were a member of the dominant culture due to the racism against Aboriginals which continues to exist in our penal institutions. [ 81 ] I find that for the trafficking offence, a sentence of 12 months of institutional incarceration is appropriate and, although I am imposing a conditional sentence order, I am declining to increase the length. I find that, in all the circumstances, a conditional sentence order will meet the principles of sentence and that Mr.

F. is capable of complying with the terms of such an order and can safely serve that sentence in the community. [ 82 ] In finding that a CSO is appropriate, I have given weight to his reduced moral culpability due to his background as an Aboriginal person and that the length and form of sentence gives due regard to the totality principle. [ 83 ] With respect to the aggravated assault, I am imposing a sentence of three years. I have determined to impose this sentence, which is more lenient than what I have found to be appropriate, to again reflect Mr.

F.'s reduced moral culpability and to give regard to the totality principle. This sentence will be consecutive to the sentence imposed on the trafficking charge. [ 84 ] I do not find that following a three-year prison sentence, which by operation of law will be followed by the one-year CSO, that a probationary term is necessary. Mr.

F. will be able to transition back into the community with the assistance of a community Corrections supervisor and I will be including terms that are crafted to be punitive, restorative, and rehabilitative. [ 85 ] I am declining to impose the fine in lieu of forfeiture as requested by Federal Crown. I find that whatever funds Mr. F. has or will have should be used for the benefit of his children. [ 86 ] Mr. F., if you will stand. [ 87 ] Mr.

F., there will be a three-year sentence imposed on the aggravated assault and a one-year, 12-month, term of imprisonment to be served as a conditional sentence on the trafficking matter. [ 88 ] THE ACCUSED: Can I just say one thing? The only reason why -- [ 89 ] THE COURT: No. [ 90 ] THE ACCUSED: -- I ended up pleading guilty was because I was told I was going to get six months, not three years, like --

[ 91 ] THE COURT: We will stand down while you collect yourself, Mr. F. I still have to deal with the ancillary orders as well as the terms of your conditional sentence. [ 92 ] THE ACCUSED: I am going to jail for three years? Like -- [ 93 ] THE COURT: We will stand down. [ 94 ] MR. CHAMBERS: Yes, Your Honour. [ 95 ] THE SHERIFF: Order in court. All rise. [PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [ 96 ] THE COURT: You can be seated, Mr. F.

All right. [ 97 ] The terms of the conditional sentence order will be that you are to keep the peace and be of good behaviour, and appear before the court when required to do so by the court.

You must notify the court or your supervisor in advance of any change in your name, address, or occupation. [ 98 ] You must remain within the Province of British Columbia unless written permission to go outside the province is obtained from the court or your supervisor. [ 99 ] You must report in person within 72 hours of your release from custody to a conditional sentence supervisor at 100, 233 West 1st Street in North Vancouver, British Columbia, and thereafter, as and where directed by your conditional sentence supervisor. [ 100 ] You will abstain absolutely from the possession or consumption of alcohol or any drugs and substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. [ 101 ] You must seek and maintain employment as directed by your supervisor or attend and complete any educational, vocational, or job skills programs. [ 102 ] You must provide for the support and care of your dependants. [ 103 ] You must attend, accept, and complete to the satisfaction of your supervisor any counselling to include, but not limited to, residential treatment. [ 104 ] When residing in residential treatment, you must obey all the rules and regulations including any curfew. [ 105 ] You are not to participate in any games of skill or chance for profit. [ 106 ] You will abide by a curfew of 8:00 p.m. to 6:00 a.m. daily. [ 107 ] You may be outside your residence for the purpose of attending to any medical emergencies for yourself or any member of your immediate family.

Your supervisor may give you written permission to be outside your residence for the purposes of attending directly to any employment or education, working and studying, and returning home immediately thereafter, or for any family or cultural purposes approved of by your supervisor. [ 108 ] You are to complete 50 hours of community work service under the direction of and to the satisfaction of your supervisor or the community work service officer and complete same within the first six months of your period of conditional sentence.

Those community work service hours are to be done for the benefit of the [omitted for publication] Nation. [ 109 ] I am going to order on each offence that you provide a sample of your DNA. On the aggravated assault, that is on a primary- ground basis and, on the trafficking, it is on a secondary-ground basis. [ 110 ] On the trafficking matter, there will be a s. 109 firearms prohibition.

So you are not to be found in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licences, and registration certificates for a period of 10 years. On the aggravated assault, the same prohibition will apply. However, on that matter, it will be for life. [ 111 ] Is there any forfeiture order given that I have declined -- [ 112 ] MS. ASHTON: I do not believe so, Your Honour, not on the drug charges, no.

The only other condition that, I am sorry, previous Crown was seeking was the no contact on the CSO with the people that he was originally living with. I am in Your Honour's hands, but they were M.A., and T.K. [ 113 ] THE COURT: Yes, all right. There will be no contact direct or indirect contact with M.A. or T.? [ 114 ] MS. ASHTON: Yes. [ 115 ] THE COURT: K. [ 116 ] MS. ASHTON: Thank you.

[ 117 ] THE COURT: All right. Any other -- [ 118 ] MS. DUMBRELL: Crown directs a stay of proceedings on Information 58648-3-A. [REASONS FOR SENTENCE CONCLUDED]