R. v. Wilson, 2018 BCSC 1405

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wilson, 2018 BCSC 1405 Date: 20180601 Docket: 44148-3 Registry: Penticton Regina v. Cody James Edward Wilson Before: The Honourable Mr. Justice Crossin Oral Reasons for Sentence Counsel for the Crown: A. Vandersluys Counsel for the Accused: M. Patterson Place and Date of Trial/Hearing: Penticton, B.C. May 25, 2018 Place and Date of Judgment: Penticton, B.C. June 1, 2018 [ 1 ] On February 8, 2018 Mr. Wilson was convicted by a jury of his peers in relation to the possession of a loaded firearm; namely a snub nose revolver. [ 2 ] In particular, Mr.

Wilson was convicted of the following counts: Count 1 /Chef 1 Cody James Edward WILSON, on or about October 7, 2016, at or near Penticton, in the Province of British Columbia, did possess a loaded prohibited or restricted firearm, a snub nose revolver with a brown handle, without being the holder of an authorization or a licence under which he may possess the prohibited or restricted firearm in that place and a registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code .

Count 4 / Chef 4 Cody James Edward WILSON, on or about October 7, 2016, at or near Penticton, in the Province of British Columbia, did carry a concealed weapon, a snub nose revolver with a brown handle, contrary to Section 90(1) of the Criminal Code . Count 5 / Chef 5 Cody James Edward WILSON, on or about October 7, 2016, at or near Penticton, in the Province of British Columbia, did store, transport or handle firearms, a snub nose revolver with a brown handle and a semi-automatic pistol black in colour with a brown grip, in a manner contravening a regulation made under paragraph 117(

h) of the Firearms Act, contrary to Section 86(2) of the Criminal Code . [ 3 ] It is the submission of the Crown that in all the circumstances Mr. Wilson should receive a sentence of imprisonment of 42 months on Count 1; 12 months imprisonment on Count 4 to be served concurrently with Count 1; and 12 months imprisonment on Count 5 to be served concurrently with Count 1 and Count 4. [ 4 ] Credit will be given to Mr.

Wilson for his time in custody pending trial. [ 5 ] Finally, the Crown seeks a number of ancillary orders relevant to these offences. [ 6 ] The submission of the defence urges that a sentence of imprisonment of two years less a day is appropriate as a global term of incarceration; and, in addition, submits the circumstances are such that the sentence can be served conditionally in the community. [ 7 ] The defence relies primarily, if not exclusively, on the reasoning of the recent decision in our Court of Appeal. R. v. Sellars , 2018 BCCA 195 .

Counsel on behalf of the defence takes the position the circumstances at bar can, and do, properly fall within the parameters of Sellars . Circumstances of the Offence [ 8 ] In the afternoon of Friday, October 7, 2016 RCMP officers in Penticton, British Columbia were dispatched to a Denny’s

parking lot in Penticton. The officers were responding to a 911 call that had been placed by the girlfriend of Mr. Wilson (Ms. G). [ 9 ] Ms. G reported that she was phoning from the washroom of the Denny’s restaurant and was in some fear due to the fact that Mr. Wilson was sitting in his truck, parked in the Denny’s parking lot, and in the possession of two loaded handguns, one of which was in his pocket. [ 10 ] The police attended the parking lot, approached Mr. Wilson’s vehicle, and arrested Mr. Wilson.

In the course of that arrest a struggle ensued and the loaded handgun was in fact located in the pocket of Mr. Wilson’s trousers. [ 11 ] The evidence at trial was that both Mr. Wilson and Ms. G were users of methamphetamine and, to one degree or another, were under the influence of that drug at the time of the incident. [ 12 ] There was also some evidence at trial, although somewhat vague, that Mr. Wilson and some other person in his life orbit, were engaged in a continuing dispute of some nature. [ 13 ] Mr. Wilson testified in his defence at trial.

He took the express position in his evidence that at no time did he possess the loaded handgun, in his pocket or otherwise. The implicit position of Mr. Wilson was that the police had lied about finding the gun in his pocket and somehow, either at or around the time of the arrest, or at some point thereafter, manufactured the evidence. [ 14 ] This, in fact, was essentially the theory of the defence as it was put to the jury by counsel. [ 15 ] The jury obviously rejected this position. Indeed, having listened to the whole of the evidence, it is my view there was simply no air of reality to the position of Mr.

Wilson in this regard. [ 16 ] The sentencing proceedings before the court have the benefit of a presentence report (PSR). Mr. Wilson identifies as an indigenous person and as such a Gladue report was prepared which is also before the court. There was no evidence called at the sentencing proceedings nor other exhibits filed, either on behalf of the Crown or the Defence. Circumstances of the Offender [ 17 ] Mr. Wilson is 27 years of age. He is unmarried and has no dependents. He has no criminal record. [ 18 ] Mr.

Wilson was born in Vancouver, British Columbia but he and his parents have lived for the most part on a five-acre parcel of land near Princeton, British Columbia. Mr. Wilson has resided with his parents on their property for his entire life. In the months preceding the offences in question, Mr. Wilson was living in a trailer on the family property. [ 19 ] Mr. Wilson has a sister who resides in Vancouver. He is estranged from her. Mr. Wilson also had a brother, but his brother passed away in 2012 at the age of 23. It appears the brother suffered from illnesses throughout his life. [ 20 ] It is reported by Mr.

Wilson that he had a “good childhood” with supportive parents. There was little if any alcohol consumption in the home as he was growing up. There is no suggestion of any physical or emotional abuse in the home. [ 21 ] It appears the issue that has caused some difficulty in the life of Mr. Wilson is the fact of a disability known as dyspraxia. There was no medical evidence proffered in this regard but it emerges from the statements of Mr. Wilson and his mother, as contained in the PSR, that the affliction caused Mr. Wilson to have a speech impediment and certain cognitive difficulties throughout his schooling.

He has gradually overcome the speech impediment but it nevertheless caused some teasing at school and difficulty generally with keeping up in school. [ 22 ] It was partly due to this affliction that Mr. Wilson left high school in grade 10 at the age of 16. [ 23 ] The PSR also records the advice of Mr. Wilson’s mother in this regard as follows: According to Ms. Bowman, Mr. Wilson’s mother, Mr. Wilson was diagnosed with dyspraxia in kindergarten, which is a developmental coordination disorder. In Mr. Wilson’s life this disorder is noted as having impacted his speech and written language skills.

If assessed by a medical practitioner other areas of impact may be distinguished. His mother recalls Mr. Wilson was given speech therapy until her was 11 years of age when his speech became understandable. His mother advises he was harassed at school and at his places of employment for his speech impediment. [ 24 ] In addition, there is information that Mr. Wilson has experienced PTSD. This is alluded to in the PSR as follows: Mr. Wilson reports previous mental health concerns in the form of Depression and Post Traumatic Stress Disorder (PTSD). Mr. Wilson and his mother contribute the PTSD to Mr.

Wilson performing cardiopulmonary resuscitation (CPR) on his brother for 30 minutes the day he died. This diagnosis was not able to be confirmed by a medical practitioner. [ 25 ] The PSR discloses, upon leaving school, Mr. Wilson has been more or less steadily employed. He initially worked at the local A&W for two years and then at approximately the age of 18 he secured employment at the Princeton Standard Pellet Corporation. This employment ended upon his arrest in October 2016. [ 26 ] During this period of time after he left school, Mr. Wilson began abusing drugs and alcohol.

His consumption of both increased after the death of his brother in 2012. Mr. Wilson’s consumption of methamphetamine began some months prior to his arrest. [ 27 ] Mr. Wilson was arrested for these offences on October 7, 2016. He remained in custody until June 2017.

[ 28 ] Mr. Wilson advises that while in custody awaiting trial he attended counselling and Alcoholics Anonymous meetings in the institution. The probation officer however was unable to confirm this with the institution and no further information was provided to the court in relation to this. [ 29 ] Mr. Wilson indicated to the probation officer that since June 2017 he has abstained from alcohol and drug use. He has not however attended any counselling in relation to his alcohol or drug problems as apparently there is no permanent drug and alcohol counsellor situate in Princeton.

He reports that he is on a waitlist to see a counsellor in Princeton. [ 30 ] In any event, Mr. Wilson has indicated he is capable of maintaining sobriety on his own. [ 31 ] While awaiting sentencing, Mr. Wilson has been doing odd jobs for neighbours such as cutting firewood and plowing snow. One of his neighbours has asked Mr. Wilson from time to time to assist him in his plumbing business and has indicated that if business picks up he would have Mr. Wilson employed on a full-time basis. [ 32 ] His mother indicates that he is resolved to have better behaviour from now on. Mr.

Wilson states he would like to complete high school but is awaiting medical assistance for a head injury. [ 33 ] It was the submission of counsel that Mr. Wilson may be able to return to the Princeton Standard Pellet Corporation after he has dealt with the court matters and his drug and substance abuse issues. Counsel has advised that the employer would not provide anything in writing in this regard. [ 34 ] A certain theme running through the PSR, and indeed the Gladue report, addresses an apparent difficulty that Mr. Wilson is experiencing of relatively recent origin. [ 35 ] Mr.

Wilson has advised that he suffered a head injury during his arrest and it is creating new and/or increased cognitive difficulties. For example, the author of the Gladue report states as follows: “Cody experiences cognitive delays due to the concussion suffered when he incurred his criminal charges”. [ 36 ] Mr. Wilson has told the probation officer that since being released from custody he is struggling with headaches and delayed cognitive function and has missed certain work opportunities as result of the head injury consequent upon the police apprehension.

He also advises that it is his fifth or sixth concussion. [ 37 ] It should be noted that the Crown took the position at the sentencing proceedings that it disagreed with this submission. The Crown submitted, correctly, there was no evidence at trial of any kind of head trauma consequent upon the arrest. There is no evidence proffered, medical or otherwise, at the sentencing proceedings in relation to this issue. The Crown did not accept the submission. Defence counsel subsequently did not seek an opportunity to lead evidence in this regard. [ 38 ] Mr.

Wilson has only belatedly acknowledged responsibility for these offences. At the time of the writing of the PSR, Mr. Wilson continued to maintain his lack of responsibility for the offences. The probation officer reported that “due to Mr. Wilson’s position on the outcome of trial, an assessment of his attitude and understanding cannot be provided”. [ 39 ] It was not until the final stages of the sentencing proceeding that Mr. Wilson indicated that while he did take responsibility, and did in fact have possession of the loaded weapon; it was for self-defence. No further detail was provided.

It remains unknown, or certainly unclear, how Mr. Wilson came into the possession of the loaded firearm; how long he had it in his possession; and the circumstances he envisioned that would cause him to use the firearm in self-defence. [ 40 ] In relation to Mr. Wilson’s indigenous heritage, Mr. Wilson’s father identifies as Métis and his mother as Shoeshone. [ 41 ] Ms. Bowman (Mr.

Wilson’s mother) recalled residing on band land as a child but reports after leaving she did not keep up with her membership or status and has not wanted to associate with that lifestyle. [ 42 ] There was no evidence that any family member on the maternal side of Mr. Wilson’s family attended residential schools. [ 43 ] Similarly, Mr. Wilson’s father and his family, originating from Dawson, Manitoba, had not attended residential schools although it is reported by Mr. Wilson’s mother that some family members of Mr.

Wilson’s father were hidden so that authorities could not take the children to residential schools. [ 44 ] While there was minimal alcohol in Mr. Wilson’s childhood in relation to his home life, it is reported that Mr. Wilson’s grandparents on his paternal side abused alcohol and were verbally abusive; although Ms. Bowman reports that she sheltered Mr. Wilson from this conduct. [ 45 ] In addition Mr. Wilson was exposed to the fact that his paternal uncles had substance abuse problems. [ 46 ] Ms. Bowman does recall arranging Mr.

Wilson and his brother to have contact with an aboriginal social worker when they were in grade school. Mr. Wilson recalls being involved in traditional cultural activities while growing up such as participating in smudges and building dream catchers. Mr. Wilson’s mother reports that the family survives in part by hunting for sustenance for the family. It appears the inability of Mr. Wilson to possess firearms since his arrest has created some difficulty in this regard although the particulars of the hardship were not made clear.

Legal Framework [ 47 ] The statutory framework for the purpose of sentencing are found in the Criminal Code of Canada, R.S.C. 1985, c. C-46:

Purpose and Principles of Sentencing Purpose 718 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. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

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. [ 48 ] The application of these principles and objectives to the kind of circumstances at bar has produced much jurisprudence.

A series of cases in the British Columbia Court of Appeal have staked out parameters that provide a certain landscape for courts imposing a sentence in the first instance. [ 49 ] These parameters are captured by Newberry J.A. for the court in R. v. Holt , 2015 BCCA 302 at paras. 18-19 : [18] … In my view, the possession of a loaded firearm does pose a serious threat, and a growing one, to communities across Canada. There is no reason why British Columbia courts should take this threat less seriously than other Canadian courts now do. As Mr.

Justice Code stated in Nur : … social norms and judicial responses to them, have changed since the 1980s and 1990s. The proliferation of handguns has increased, homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach to

sentencing in cases involving handguns. It is a common phenomenon, in the law of sentencing, for sentences to increase and decrease associetal and judicial knowledge and attitudes about certain offences change. In its seminal decision setting out the modern principles ofsentencing, R. v. Willaert (1953), (ON CA), 105 C.C.C. 172 at 176 (Ont.

C.A.), the Court of Appeal made it clear thatappropriate sentences will change over time as the “needs of society” change: I am respectfully of opinion that the true function of criminal law in regard to punishment is in a wise blending of the deterrent and thereformative, with retribution not entirely disregarded, and with a constant appreciation that the matter concerns not merely the Court andthe offender but also the public and society as a going concern. Punishment is, therefore, an art – a very difficult art – essentiallypractical, and directly related to the existing needs of society.

A punishment appropriate today might have been quite unacceptable twohundred years ago and probably would be absurd two hundred years hence. It is therefore impossible to lay down hard and fast andpermanent rules. [At para. 49.] [19] In my view, the fact a 40-month sentence was upheld almost without challenge in the Nur appeals, the comments of courts in otherrecent appellate decisions, but most especially the proliferation of guns in the Lower Mainland generally, indicate that a re-alignment ofthe “range” is in order in British Columbia. I would say that Mr.

Holt falls at the bottom end of the “criminal” range, and that a sentenceof close to three years is called for. I am also persuaded that the sentence of 18 months’ imprisonment was unfit given the seriousness ofthe offence. Also see R. v. Guha, 2012 BCCA 423; and R. v. Racette, 2016 BCCA 275. [50] This was emphasized most recently by Madam Justice Dickson for the court in R. v.

Kachuol, 2017 BCCA 292 at para. 26: As Madam Justice Smith recognised in Guha at para. 30, when an offender possesses a firearm, particularly a handgun, for an illicitpurpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary. Common senseand human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptlyput it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”.

By criminalizing such conduct vias. 95(1), the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severe exemplarysentences for possession simpliciter, courts support and advance the goals of this intervention. [51] And further at para. 29: Mr. Kachuol’s possession of the loaded prohibited handgun in a moving car, strategically placed for ready access and entirely outside ofthe regulatory framework, posed a real and immediate danger to those in his orbit.

The risk was increased by his consumption of alcoholand the urban environment in which he possessed the “crime gun”. Other aggravating factors, such as his prior criminal record andfirearms prohibition, were also present. Given the serious nature of his offence, his degree of moral culpability and the paramountcy ofdeterrence and denunciation, and despite his positive personal attributes and rehabilitative prospects, a sentence below the bottom end ofthe “criminal range” established in Holt cannot be justified. Mr.

Kachuol’s case was not exceptionally unique or even favourablydistinguishable from Nur or Holt in any material sense. [52] There may be circumstances in any given case that justify a sentence that falls outside those considered guidelines. It is alwaysa question of proportionality. Unusual or unique or exceptional circumstances that arise may justify a sentence other than within theseguidelines. [53] A most helpful recent pronouncement addressing the issue of “extraordinary circumstances” that may take the case out of theordinary sentencing range is to be found in the conclusions of Bennett J.A. in R. v.

Voong, 2015 BCCA 285, at para. 59: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dopedrug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptionalcircumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation forthe drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed toharm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstancesthat are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge toconclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served bya non-custodial sentence. [54] These comments were made in the context of drug offences but it is a statement of principle that is applicable to most offences,including the offences at bar. [55] Most recently, these principles were adopted in the context of offences related to weapons: see R. v.

Sellars, 2018 BCCA 195 atpara. 34. [56] In addressing the particular circumstances in Sellars, the court commented at para. 37: [37] To be balanced against those factors, is that Mr. Sellars is an Aboriginal offender to whom s. 718.2(

e) applies, who was found bythe judge to have undertaken exceptional rehabilitative steps, and whose moral culpability was diminished by his backgroundcircumstances. ... In the face of this turbulence, Mr. Sellars demonstrated the strength of character, not only in coming to grips with hissubstance abuse, but to disassociate himself from the people involved in the gangster lifestyle because it required him to effectively leavehis home community.

It seems to me that this dynamic makes his personal circumstances more commendable and favourablydistinguishes his case from the circumstances of the offenders in Nur, Holt, Kachuol, and other appellate authorities on firearmsoffences. Additionally, Mr. Sellars no longer poses a risk to the public; specific deterrence was not an issue in his sentencing. As a result,in my view, a sanction below the general range established in Holt is justified in Mr. Sellars’ case. [57] Mr. Wilson is an offender of indigenous heritage.

Certain principles therefore are to be brought to bear in addressing therequirements mandated in

section 718.2 (e): R. v. Gladue, (SCC), [1999] 1 S.C.R. 688.

[58] These principles were reinforced more than a decade later and addressed in R. v. Ipeelee, 2012 SCC 13 , [2012] 1S.C.R. 433; in particular at para. 59: [59] The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use adifferent method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to payparticular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic orbackground factors which may have played a

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

b) the types ofsentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particularAboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factorsaffecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentencereport (Gladue, at paras. 83-84). Analysis [59] Mr. Wilson has been found guilty of serious offenses. He is 27 years of age and has no criminal record.

The circumstances ofthe offence are relatively straightforward. Mr. Wilson, at mid-day, possessed and concealed a fully loaded firearm in and around thedowntown area of Penticton, British Columbia. The firearm was unregistered and unlicensed and within easy access of Mr. Wilson. [60] There is no explanation before the court as to the duration he had possession of this particular firearm nor how he came intopossession of it. [61] Mr. Wilson has now advised the court that he had possession of the firearm for the purpose of self-defence. The context of anypotential disputes that Mr.

Wilson thought he may encounter on the streets of Penticton remain unclear. [62] The possession of a loaded weapon in these circumstances can only be to threaten or inflict harm or death if thought necessaryby Mr. Wilson. It is classically a “tragedy in gestation”. The law in this area exists to interfere in that gestation period. [63] Possessing and concealing and arming oneself with a loaded firearm in an urban area for the purpose of resolving real orimagined grievances, if and when they arise, is a circumstance ripe for catastrophe. [64] The fact Mr.

Wilson was under the influence, to one degree or another, of methamphetamine at the relevant time makes thecircumstances all the more fraught with peril in relation to public safety. [65] It cannot be disputed that his admitted drug problem must be addressed properly and professionally if Mr. Wilson has any hopeof turning his life in a different direction. [66] While Mr.

Wilson has indicated he is prepared to do just that and states he has successfully resisted drugs since his release fromcustody in June 2017, he has not as yet attended for any counselling in this regard. [67] He has not attended any programs in relation to rehabilitation for substance abuse, employability, healthy relationships, lifeskills, or healing with First Nations programs or the interaction with Elders. [68] While I do not dismiss Mr.

Wilson’s expression of abstinence and his desire to remain substance free, the totality of theinformation in this regard does not allow for a finding there are exceptional, or even particularly useful, efforts under way to address hissubstance abuse issues. [69] It was during the sentencing proceedings on May 25, 2018, that Mr. Wilson announced he was taking responsibility for theoffence and that he had possessed and concealed the weapon for defensive purposes. This declaration can certainly be seen as a positivestep, but it comes rather late in the day. [70] As previously referenced, as late as April 2018, Mr.

Wilson was continuing to deny responsibility for the offence and offeringno insight into his conduct. [71] I am prepared to interpret his remarks as an expression of remorse, but in the circumstances, I give it little weight. It certainlydoes not allow the court to give it the kind of credence that can bolster the court’s view concerning Mr.

Wilson’s prospects forrehabilitation and personal insight into his conduct. [72] With respect, this case does not disclose the kind of information and/or evidence that could possibly justify a finding of uniqueor exceptional circumstances as envisioned in Sellars. [73] Finally I address the principles engaged by Gladue.

Gladue factors impact the assessment of an offender’s moral culpability andconsequently may play an important role in determining a just and appropriate sentence. [74] The foundational statement is found in Gladue at para. 80: “ as with all sentencing decisions, the sentencing of aboriginaloffenders must proceed on an individual (or case-by-case) bases: for this offence; committed by this offender; harming this victim; in thiscommunity”. [75] In the context of s. 718.2(

e) of the Criminal Code, two broad factors are in play concerning the sentencing of an aboriginalperson:

1) the systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts. This must be case specific information that assists the court to assess the culpability or moral blameworthiness of the offender ( Ipeelee at para. 73 ; and 2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

This aspect of the report assists the judge to assess the effectiveness of the sentencing options ( Gladue paras. 59 and 74 ). [ 76 ] In my respectful view there is not present in the case at bar information demonstrating a palpable history of intergenerational collateral damage linked to the legacy of residential schools. [ 77 ] Indeed, the Gladue report concludes: Cody and his family did not know of anyone in their family who attended an Indian Residential School, therefore inter-generational trauma from I.R.S. is not significant for him.

However, he had family members who were almost forced into the schools by authorities, therefore the negative effects of colonialism, in a broader sense, have reached his family. Cody would benefit from a First Nations specific program which could focus on healing this kind of family trauma. [ 78 ] The observation of the author that intergenerational trauma from residential schools is not significant in the case of Mr.

Wilson does not, in my view, negate the overarching duty of the court to appreciate the fact that the scars of intergenerational trauma are often opaque. [ 79 ] Judicial notice often is the route to recognizing the damage left in the wake of the generational interplay between indigenous persons and the fear and loathing associated with the residential school policies. [ 80 ] In order to anchor that judicial notice, one need only read the stark words of introduction to the Final Report of the Truth and Reconciliation Commission of Canada: For over a century, the central goals of Canada's Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.

The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.” [ 81 ] It is appropriate in the case at bar to recognize this. It justifies, in my view, a conclusion that the Gladue factors mitigate, to a degree, the moral culpability of Mr. Wilson.

Conclusion [ 82 ] The appellate courts of British Columbia have provided a clear and unambiguous direction in assessing a fit sentence in these kinds of cases. [ 83 ] The language in Holt is straightforward and bears repeating: [19] In my view, the fact a 40-month sentence was upheld almost without challenge in the Nur appeals, the comments of courts in other recent appellate decisions, but most especially the proliferation of guns in the Lower Mainland generally, indicate that a re-alignment of the “range” is in order in British Columbia. I would say that Mr.

Holt falls at the bottom end of the “criminal” range, and that a sentence of close to three years is called for. [ 84 ] I do not find that exceptional circumstances are present in this case. I do conclude however that the circumstances outlined in the Gladue report do mitigate and reduce the moral blameworthiness of Mr. Wilson in relation to this matter. [ 85 ] In the result, I conclude a fit and proper sentence in this matter is 30 months imprisonment on Count 1. In addition, I sentence Mr.

Wilson to 12 months imprisonment on Count 5 to be served concurrently; and 12 months imprisonment on Count 5 to be served concurrently with Counts 4 and 1. [ 86 ] The accused was in pretrial custody from October 7, 2016 to June 5, 2017, for a total of 242 days. This pretrial time is credited in the amount of 1.5 days per actual day in custody; which equates to 363 days. [ 87 ] Therefore the net sentence imposed, after credit for time served, is imprisonment for 18 months plus 2 days. Ancillary Orders [ 88 ] In addition, I make the following ancillary orders sought by the Crown:

a) There will be a firearms prohibition pursuant to s. 109 of the Criminal Code .

b) Mr. Wilson will be required to provide a DNA sample in accordance with s. 487.051(3)(b);

c) There will be a forfeiture of the firearms, baton, and ammunition seized at the time of arrest. [ 89 ] THE COURT: The victim surcharge is waived. Is there anything else, gentlemen?

[ 90 ] MR. VANDERSLUYS: No, thank you, My Lord. [ 91 ] MR. PATTERSON: No, thank you, My Lord. [ 92 ] THE COURT: Mr. Wilson, just before we break, I hope you can take advantage of some of the programs that will be available to you. I know there are a number of good programs in the institution, and if you take these programs and, if I may say, keep your nose clean, you may be out in a few months. And then I would urge you to take advantage of the programs in the province, particularly reconnecting you to your indigenous heritage. You cannot turn your life around by yourself. You need help. You must reach out.

This is an unhappy day for all concerned. I take no pleasure in sending a young man to jail. No one in this room takes pleasure in that. You have got a lot of life ahead of you. I believe you have a good heart. I do not believe you are a bad person. Turn it around. All right. [ 93 ] THE ACCUSED: Thank you. [ 94 ] THE COURT: Okay. Good luck to you sir. “The Honourable Mr. Justice Crossin”