R. v. Larose, 2023 BCPC 174

Citation: R. v. Larose 2023 BCPC 174 Date: 20230609 File No: 72127-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DYLAN JAMES LAROSE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Crown: R. Robinson Counsel for the Defendant: C. Terepocki Place of Hearing: Chilliwack , B.C. Date of Hearing: June 9, 2023 Date of Judgment: June 9, 2023

[ 1 ] THE COURT : Given these reasons are going to be delivered orally, if a transcript is ordered I may add in case citations that are not read into the record or make minor editorial changes that do not affect the substance of my decision. The Facts [ 2 ] Mr. Larose was convicted after trial on one count of aggravated assault against Pete Letkeman on October 27th, 2021. [ 3 ] These reasons for sentence should be read in conjunction with my reasons for conviction. [ 4 ] In

summary, Mr. Larose and an accomplice referred to as Mr. Hootnick, arrived at the place that Ms. Ebach had parked her RV, about one kilometre up a relatively remote forest service road. Mr. Letkeman had been doing repairs on the RV for his friend, Ms. Ebach. When Mr. Larose and Mr. Hootnick arrived at the RV, Mr. Letkeman saw them emerge from their vehicle armed. Ms. Ebach and her boyfriend, who has been referred to as Dave, had been in the RV but they played no role in what happened, other than telling Mr. Letkeman to run. Mr. Larose and Mr. Hootnick were strangers to Mr.

Letkeman and he made a short and futile attempt to escape. [ 5 ] Mr. Larose and Mr. Hootnick caught up with Mr. Letkeman and were making intimidating demands for something that he did not understand. They referred to Mr. Letkeman using the name of Ms. Ebach's boyfriend. While Mr. Letkeman was facing Mr. Hootnick and insisting that they had the wrong person, Mr. Larose stabbed Mr. Letkeman in the back. The stabbing caused Mr. Letkeman extremely serious injuries, including a lacerated artery, massive blood loss that required transfusion and ultimately the loss of a kidney. [ 6 ] Mr. Letkeman testified that Mr.

Hootnick seemed surprised by the stabbing and that it was Mr. Hootnick who decided they had to get Mr. Letkeman immediate medical attention. Mr. Hootnick and Mr. Larose helped Mr. Letkeman to their car and Mr. Hootnick drove them to a worksite. Mr. Larose remained with them as the car pulled into the worksite where Mr. Letkeman received the medical assistance. Mr. Larose and Mr. Hootnick were ultimately arrested at this worksite. [ 7 ] One of the somewhat unique features of this case is the fact that Mr. Larose also played a role in Mr. Letkeman receiving the swift medical attention that likely saved his life.

Issues [ 8 ] Both counsel agree that a fit sentence will be a federal term of imprisonment. Defence counsel submits that Mr. Larose's needs will be better served in a federal institution. He submits a fit sentence will be four years less the time Mr. Larose has served in custody which would leave him just over two years to serve. Crown urges the court to impose a sentence in the range of six to eight years, less time served. [ 9 ] The issue to be decided at this hearing is the appropriate length of the custodial sentence to be imposed.

Sentencing Principles [ 10 ] The offence of aggravated assault is a serious one, punishable by imprisonment for up to 14 years. In determining a fit sentence, I am guided by the purposes and principles of sentencing set out in s. 718 through 718.2 of the Criminal Code . 718 and 718.1 state that: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 11 ] The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This analysis requires close attention to the specific circumstances of the offender as well as the offence. [ 12 ]

Section 718.2(

d) requires that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. In other words, jail is a last resort when there are no other reasonable means of achieving the objectives of sentencing. [ 13 ]

Section 718.2(

e) requires: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[14] When dealing with offenders of indigenous heritage, such as Mr. Larose, this

section obliges judges to use a different method ofanalysis in determining a fit sentence. See R. v. Gladue, (SCC), 1999 1 SCR 688 and Rv. Ipeelee, 2012 SCC 13. [15] In Ipeelee, the Supreme Court of Canada emphasized that s. 718.2(

e) reinforces a core requirement of the sentencing process bydirecting the court's attention to the unique circumstances of aboriginal offenders and the court writes:

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentationof Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particularattention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particularcase. This has been, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with the requirementthat sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status andlife experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadiancourts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section718.2(

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.Neglecting this duty would not be faithful to the core requirement of the sentencing process. Circumstances of This Offence [16] Mr. Larose committed an extremely serious offence. Predictably, it caused significant and lasting injury, including life-longmedical disparity and deformity. Mr. Letkeman described the impact of the offence on him physically and emotionally in the course ofgiving his evidence at trial. In both senses, the impact of the offence was profound.

It is remarkable, in light of these devastatinginjuries, that Mr. Letkeman was still able to express gratitude that Mr. Larose did not leave him to die of his injury. [17] Mr. Letkeman was stabbed in circumstances where he could not defend himself; he was unarmed, outnumbered and attempting torun away. The stabbing was unprovoked; Mr. Larose stabbed Mr. Letkeman in the back while he was frantically trying to communicatethat they had the wrong guy. [18] The circumstances of the stabbing show a chilling disregard for Mr.

Letkeman's life, particularly as the offence occurred in aforest, a kilometre up a mountain where it could be difficult for Mr. Letkeman to get medical attention for his injuries. [19] While Mr. Larose ultimately did not thwart effort to get Mr. Letkeman the help he needed, the evidence shows Mr. Hootnickwas the engine behind making that happen. [20] Mr. Larose committed this offence using a deadly weapon. Mr. Hootnick wielded what looked like a firearm. While thestabbing itself may have been an impulsive decision, it was executed while Mr. Larose was participating in a predatory and planned actof intimidation.

It is clear that Mr. Larose and Mr. Hootnick were there for a nefarious purpose and looking for a specific person, evenif that person was not Mr. Letkeman. [21] Defence counsel does not dispute that Mr. Larose's presence at the scene was likely connected to illegal drugs. [22] I will pause here to address the Crown's submission that I should find it an aggravating factor that this offence was part of a drugdebt enforcement.

The authorities Crown relies on to advance this argument are perfectly sound; however, the necessary facts to applythat law to this case have not been established beyond a reasonable doubt. [23] The fact that Ms. Ebach was a heavy drug user and the fact that strangers to Mr. Letkeman showed up at her RV trying to getsomething through intimidation could be consistent with Mr. Larose being involved in collecting a drug debt.

However, given theabsence of reliable evidence to support this inference, the evidence falls short of establishing an aggravating factor at sentencing. [24] I do not understand the Crown to be directly arguing that this offence was in fact committed for the benefit of a criminalorganization, but given some of the submissions, I will note for clarity that there is no evidence to support that finding. [25] Regardless of what it was that Mr. Larose and Mr. Hootnick were seeking out that day, what remains aggravating is the fact thatMr. Larose felt entitled to use brutal force in order to accomplish the task.

Circumstances of This Offender [26] Mr. Larose is 30 years old. He is described by those who love him as intelligent and kind. He is fortunate to now have thesupport of both parents who have demonstrated that they are willing and able to provide the love and assistance that Mr. Larose needs. Unfortunately, in his earlier years his parents, for different reasons, were not able to provide for his needs. [27] Mr. Larose's childhood was marked by neglect, trauma, substance abuse and antisocial conduct by the adults in his life. I canwell understand how it may be difficult for Mr.

Larose to now take advantage of his parents’ support. Not surprisingly, given thebackground described in both of the reports before me, Mr. Larose fell into substance use at a very early age and has lived in the grips ofaddiction since he was a child. There is no reliable information before the court regarding any diagnosed mental illnesses, althoughinstitutional medical records indicate historical diagnoses as ADHD, PTSD, obsessive-compulsive disorder, depression and anxiety. More recently he was diagnosed by a psychiatrist at FRCC with substance use disorder and antisocial personality disorder. Mr.

Larose attimes acknowledges that he has ADHD or has been treated for it in the past, and at other times he denies any mental health diagnoses orconcerns. [28] Despite Mr. Larose's struggles, he managed to maintain employment for a time working in the pipeline and scaffolding industriesin his early 20s. His father has the means to assist him with similar employment and has done so in the past; he plans to do so in thefuture when Mr. Larose is released from custody. [29] Unfortunately, Mr. Larose's adult life has, in his own words, been spent "on the streets getting high or in jail". His criminal

antecedents are extensive and serious. He committed this offence while on bail for a prison stabbing. The reports reveal that Mr. Larose has used knives in committing past offences; namely robberies and a prison stabbing that led to his most recent conviction. [ 30 ] The reports also detail how substance abuse has been a factor in Mr. Larose's history of violent conduct. Defence counsel submits that substance use also played a role in the present offence. [ 31 ] Sadly, Mr. Larose's drug use is entrenched and he has not been willing or able to manage or address his addiction while out of custody.

Despite telling the Gladue report writer that his 40 or so past convictions are "all because of drugs", Mr. Larose has a troubling lack of insight into the depth of his addiction or just how urgently it needs to be addressed. [ 32 ] Mr. Larose told the psychiatrist who prepared a report for sentencing that he "does not find substance use programming helpful" because he already knows the content and can quit drugs when he wants. Mr.

Larose was similarly dismissive of the need to address any issues with his mental health, which could conceivably be connected to his ongoing impulsive violence. [ 33 ] The psychiatrist sees Mr. Larose's substance use as a notable risk factor and it is part of the reason she believes Mr. Larose poses a relatively high risk for violence in the near future. I agree with this assessment, in large part because of Mr.

Larose's pattern of violent conduct and his resistance to community based programming to address his drug use. [ 34 ] His parents have gone to significant lengths to get him help in this regard, including his mother acting as a surety on a cash deposit bail at the time he committed the index offence. That bail order was designed to foster Mr. Larose’s ability to manage addiction while out of custody. Mr. Larose was supposed to be living with his mother. He was ordered not to leave Saskatchewan, to abstain from drugs and to take treatment. Mr.

Larose was in breach of several conditions of this order when he committed this offence. [ 35 ] When I turn then to Mr. Larose's plan upon his release to work with his father in order to separate himself from negative peers and pursuits, I must find that there is no objective prospect of success until Mr. Larose has made significant progress managing his addiction while in custody. [ 36 ] Crown submits that Mr. Larose's rehabilitation will also be hampered by his lack of remorse and understanding of the harm that he has caused. Mr.

Larose gave inconsistent information to different report writers but notably, in the interview with the Gladue report writer, where perhaps he was more at ease, he did express feeling bad for what he has done. I accept his comments to the report writer as some indication of remorse, but nevertheless, I must say that Mr. Larose is far from demonstrating that he understands the gravity of his offending and the danger that he presents when he uses illegal drugs. To be clear, lack of remorse is not an aggravating factor but it does play a role in the court's assessment of Mr.

Larose's prospects for rehabilitation. [ 37 ] Finally, in considering Mr. Larose's circumstances, I have taken into account that he is Metis. The Gladue report was most helpful to this court in detailing Mr. Larose's personal history as well as the experience of Metis people in Canada. Mr. Larose is not connected to his indigenous culture; however, this disconnection does not prevent this court from finding that the destructive aftermath of colonialization has affected Mr.

Larose in such a way that his moral culpability is reduced. [ 38 ] Our Court of Appeal has given recent direction on this precise issue in R. v. Kehoe 2023 BCCA 2 . The court in Kehoe directs that sentencing judges must pay particular attention to two factors, especially where, as here, the offender is disconnected from their heritage: (1) the unique systemic or background factors that may have played a

part in bringing the particular indigenous offender before the courts; and (2) the types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular indigenous heritage connection. [ 39 ] In considering systemic and background factors, the judge must take account of all the surrounding circumstances including "the unique circumstances of the offender as an aboriginal person" and display sensitivity to and understanding of the "difficulties aboriginal people have faced with both the criminal justice system and society at large".

Gladue at paragraph 81 and Ipeelee at paragraph 59 through 60 and 75. [ 40 ] I am satisfied this is a case much like R. v. Kehoe , where the offender is disconnected from their heritage and may not even see value in reconnecting with indigenous culture. The issues, therefore, as the court frames them in Kehoe are:

(1) The role of Canada's colonial history and post-colonial assimilation as policies that have played into causing that disconnection and (2) the role that disconnection played in Mr. Larose coming before the court. [ 41 ] I have been assisted, as I have said, by the Gladue report in understanding this first issue. Mr. Larose's disconnection from indigenous culture is not unusual for Metis persons. The Gladue report explains how the Metis are often disconnected from their culture given the unique prejudice they face in Canadian society. Mr.

Larose's disconnection from his heritage is, in itself, a factor that demonstrates the outcomes of racism and assimilationist policies. Furthermore, as the court directs in R. v. Kehoe , sentencing judges are to take judicial notice of how Canada's colonial history and post-colonial assimilationist policies have translated into terrible outcomes. [ 42 ] When I turn to the second issue, I find that Mr. Larose's disconnection from his heritage did play a role in his coming before the court. Mr. Larose's paternal great grandmother attended residential school and suffered trauma. She and her daughter, Mr.

Larose's grandmother, became alcoholics. As a result, Mr. Larose's father grew up witnessing alcohol abuse by family and community members. This is precisely the type of inter-generational trauma recognized by the Truth and Reconciliation Committee. It is trauma that often flows from cultural disconnection. Mr. Larose's mother suffered a similar family experience with inter-generational alcoholism. [ 43 ] In

summary, several of the Gladue factors identified in the report are present in this case and I do find that these factors detract from Mr. Larose's moral culpability. There are clear links in this case between substance use and violence for Mr. Larose, and also between his substance abuse and inter-generational trauma caused by colonialization. [ 44 ] While the Gladue factors in this case do detract from Mr. Larose's moral culpability, there are other factors to consider as well. When it comes to Mr.

Larose's degree of responsibility I must also consider his resistance to supports or treatment for his substance use, even from his own family. At the time of the offence, as I have said, these issues were meant to be addressed by the bail order he

violated. In my view, Mr. Larose’s lack of success in that regard increases his moral blameworthiness. Mr. Larose can also be presumedto have known from past offences, particularly with knives, how easily this kind of impulsive violent conduct can cause serious harm. Significant sentences for past offences have not deterred his offending. He has had the opportunity to reflect on the consequences of hisactions and to change his behaviour and his failure to do so increases his moral blameworthiness. See R. v. Kruger-Allen, 2021 BCSC445 at paragraph 48. Furthermore, Mr.

Larose is no longer a very young man. [45] And, finally, this offence was unprovoked and the evidence at trial suggests that Mr. Larose's actions were an erratic anddangerous departure from whatever plan existed between him and Mr. Hootnick. Even considering the Gladue factors in this case, Imust find that Mr. Larose's degree of responsibility is not insignificant. [46] In

summary, the aggravating and mitigating circumstances in this case are as follows: [47] In aggravation is Mr. Larose's past criminal record, including for offences involving violence; the use of a deadly weapon, thatbeing a knife; the stabbing being unprovoked and part of a planned act of intimidation against a stranger; the devastating injury thatresulted to the victim and, finally, the fact that at the time of the offence Mr. Larose was on a strict form of bail for a stabbing that hadcaused bodily harm. [48] In mitigation, there are the factors I have reviewed regarding Mr.

Larose's indigenous background and his reduced moralculpability. I have also considered it mitigating in this sentence that Mr. Larose participated in, or at least did not thwart attempts tobring Mr. Letkeman to medical assistance, even though this ultimately resulted in Mr. Larose being arrested. Analysis [49] A fit sentence not only weighs the seriousness of the offence and the degree of responsibility of the offender, the principle ofparity dictates that sentences must also align with sentences in similar cases.

Counsel have provided helpful cases to assist the court inthis regard. [50] I rely on the following Court of Appeal decisions regarding benchmarks for sentencing and aggravated assault cases: R. v.Johnson (1998) (BC CA), 131 C.C.C. (3d) 274, and more recently R. v. Craig, 2005 BCCA 484. While the sentencecan exceed or be lower than this, the court in Johnson finds a range of sentence is between 16 months and six years for offences of thisnature. The court notes that where there are fights escalating to serious injury, they tend to fall into the lower end of the range.

On theother hand, attacks with a weapon without provocation and without any opportunity for the victim to defend themselves will fall in thehigh end of that range. See R. v. Johnson at paragraph 10. [51] I find the facts of this case fall in the high end of this range. [52] Counsel have submitted other authorities including R. v. Larose 2013 BCCA 450 (not a case related to this offender), R. v.Laglace 2022 BCSC 1773, R. v. Hartford 2022 BCSC 1183 and R. v. Kruger-Allen. On the basis of these cases, defence counsel agreesthat a sentence of five years could fit the facts of this case, however, on the basis of R. v.

Kehoe, the defence submits that in order toproperly take into account the significant Gladue factors applicable here, a fit sentence is four years. [53] R. v. Kehoe has indeed guided this court. There are similarities in both the offences and the offenders. It is most helpful to thiscourt for the direction given regarding the weight that should properly be attributed to Gladue factors in diminishing moral culpabilityand the resulting impact on sentence even where the offence itself is serious and violent.

However, I do find some distinguishing factualcircumstances that make the case at bar more aggravated. [54] Mr. Larose was involved in a premeditated enterprise to intimidate. He was seeking out a victim, even if that person was astranger to him. Mr. Kehoe's offence was much more opportunistic. Mr. Letkeman was outnumbered by Mr. Larose and Mr. Hootnick,whereas Mr. Kehoe was a lone assailant against a group of three young men. Mr. Kehoe stabbed his victim after there was a mutualphysical altercation in which one of the victim group wielded a taser baton. In contrast, Mr.

Larose stabbed an unarmed man who haddone nothing but try to run away or diffuse the situation. [55] Both Mr. Larose and Mr. Kehoe have concerning criminal records and issues with substance abuse; however, Mr. Larose has aunique history of violence involving knives. Moreover, Mr. Larose's lack of insight into his offending and lack of demonstrated desire todo what it takes to ensure serious acts of violence are not repeated also lead me to find that the risk Mr.

Larose poses to the publiccommands a lengthier sentence than was imposed by the court in Kehoe. [56] Rehabilitation cannot, and will not, be completely abandoned as an objective of sentencing in this case. However, I find it isbest achieved by exercising restraint in the length of the sentence to be imposed. I agree with counsel that Mr.

Larose's best prospectsfor rehabilitation will be in the controlled and supervised environment of the federal incarceration system. [57] The primary principles determining this sentence will be deterrence and denunciation; in short, the public must be protected fromthe kind of danger that flows from Mr. Larose being released into the community without having first had a significant period of time toaddress the underlying causes of this offence. It is undeniable that some of those causes were out of Mr. Larose's control, but ultimately,Mr. Larose, you must be held accountable for the serious harm that you caused.

The way forward will not be easy but given theconfidence that your family has in you, and with their experience in addiction themselves and their ongoing support, I trust that you willbe able to change the course your life has taken. [58] I find that a fit sentence in this case is five and a half years; that is, 2,007 days. I am taking into account that Mr. Larose hasspent 434 days in custody. I am giving him enhanced credit of time and a half which amounts to 652 days. The resulting sentence goingforward that will be recorded for the record is 1,355 days, which is approximately three years and eight months.

I recommend thesentence be served at Kwikwexwelhp, which is referenced in the Gladue report. [59] There are additional ancillary orders. Under s. 109, given past convictions, Mr. Larose will be prohibited for life from

possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance. [ 60 ] This is a primary designated offence for the taking of DNA and I am making that order. [ 61 ] There will be a mandatory weapons forfeiture order under s. 491 that Crown will draft for my signature. [ 62 ] And, finally, I will make the order under s. 743.21 that Mr. Larose is prohibited while he is incarcerated from contacting Jared Hootnick, Pete Letkeman, Kayla Ebach or Dave William Oickle. (ORAL REASONS FOR SENTENCE CONCLUDED)