R. v. C.G.O. Date:, 2011 BCPC 145

Citation: R. v. C.G.O. Date: 20110617 2011 BCPC 0145 File No: 72804-TC2 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA First Nations Court Subject to a ban under

section 486.5(1) of the Criminal Code REGINA v. C.G.O. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: W. van Tongeren Harvey and M. Stacey Counsel for the Defendant: V. Desroches Places of Hearing: New Westminster and Port Coquitlam , B.C. Dates of Hearing: September 9, 2010, February 18, 2011 and May 30, 2011 Date of Judgment: June 17, 2011 Introduction [ 1 ] After re-electing a trial by Provincial Court Judge, Ms.

C.O. pleaded guilty in First Nations Court to the following charges: Count 1 Between the 1 st day of September, 2007 and the 24 th day of October, 2007, inclusive at or near Surrey, in the Province of British Columbia, she did commit aggravated assault of A.R.O., contrary to Section 268(2) of the Criminal Code . Count 2

Between the 14 th day of October, 2007 and the 24 th day of October, 2007, at Surrey in the Province of British Columbia, she did fail without lawful excuse to provide the necessaries of life to A.R.O., a person under her charge and unable, by reason of age, to withdraw herself from such charge, and to provide herself with such necessaries and did likely cause the health of A.R.O. to be injured permanently, contrary to Section 215(2) (

b) of the Criminal Code . [ 2 ] The First Nations Court follows these guidelines for sentencing: with the application of Canadian laws, to promote respect for the person, family and community; to recognize culture and language; to acknowledge the importance of education and healing; to take a holistic approach to problem-solving; to recognize the importance of healthy people, families and communities; and, to acknowledge the need for a safe and peaceful community. The Facts 1. Background [ 3 ] Ms. C.O. now is thirty-three years old. She was born in Regina, Saskatchewan. She is Cree.

She is the oldest of five children. She has two younger sisters and two younger brothers. [ 4 ] Ms. C.O. grew up on a reserve near Regina. The Chief of her First Nation was quoted in the Pre-Sentence Report as saying that there are several social issues that currently affect his people, including poverty, addictions and abuse. He stated that there are many individuals and families that continue to face the inter-generational impacts of the residential school system. [ 5 ] Being the oldest of the children, Ms. C.O. often had to look after her sisters and brothers.

This was especially so when her parents drank alcohol and fought. Her parents fought both verbally and physically. On these occasions, Ms. C.O. took her sisters and brothers to their grandmother’s home nearby for safety. Her parents used physical punishment to discipline the children. [ 6 ] Starting when Ms. C.O. was about five or six years old, her father sexually abused her. This continued until she was about thirteen years old. Although she told her mother about the sexual abuse, nothing was done to stop it. Ms. C.O. was too frightened to go to court. Ms.

C.O. has just tried to forget the sexual abuse. [ 7 ] Ms. C.O. learned about her family’s Aboriginal traditions from her maternal grandmother and grandfather. Her grandfather was a Medicine Man. She attended pow-wows and other traditional events. She enjoyed a close relationship with her grandparents and remembers her early childhood as being a happy one. [ 8 ] Ms. C.O.’s parents separated when she was about seven years old. She saw her father on weekends. The sexual abuse continued when he was drunk. Ms. C.O. tried to stay away from him when he was drunk. [ 9 ] After the separation, Ms.

C.O.’s mother stopped drinking as much and returned to school. She found steady employment. Ms. C.O. remembers her mother as being very busy and not home very often. As the oldest, Ms. C.O. had to look after her brothers and sisters. She had to look after the house, too. Her mother remarried when Ms. C.O. was fourteen years old. Ms. C.O. did not have a good relationship with her stepfather. [ 10 ] Ms. C.O. went to the school on the reserve. She struggled academically and socially at school. She left school after a few months of grade seven.

Other than a few months of adult education, she has not continued her education. After leaving school, Ms. C.O. did some babysitting for people on the reserve. She also helped her grandmother clean the Band offices. [ 11 ] In 1994, Ms. C.O. was in a serious car accident. In addition to broken bones, she sustained a head injury. She was hospitalized for several weeks and made a full recovery. [ 12 ] Also in 1994, Ms. C.O. met Mr. A. They were both about sixteen years old. He had family on the reserve but he did not live there when he was growing up. After a few months, they started dating each other. Mr.

A. was Ms. C.O.’s first boyfriend. Although Mr. A. acted “nice” around Ms. C.O.’s family and friends, he got angry with her, especially after she was with her friends. Soon, he became physically abusive to her. [ 13 ] When Ms. C.O. was seventeen years old, she took her first trip away from the reserve. She went with Mr. A. and his mother to Winnipeg and then to Toronto. Mr. A. continued to beat Ms. C.O. when he got angry. Ms. C.O. asked Mr. A.’s mother for help, but she said to let him “cool off”. Ms. C.O. did not like her first trip off of the reserve. [ 14 ] After the trip, Ms. C.O. lived with Mr.

A. at his mother’s house on the reserve. Mr. A. became angry when Ms. C.O. was with her friends and for other unpredictable reasons. He continued to beat her when he was angry. Again, Ms. C.O. asked his mother for help and she told Ms. C.O. to let him “cool off”. Ms. C.O. soon learned to keep quiet and to do what Mr. A. told her. Then, there would be peace. However, she did not always know what would make him angry. She found that getting the police involved just made the situation worse for her. Ms. C.O. felt that her own mother was too busy to help her. [ 15 ] In April, 1998, Ms.

C.O. had their first child, a daughter. Three weeks later, Mr. A. moved to Surrey, B.C. Ms. C.O. moved into her mother’s house on the reserve. It was a very crowded house. Later, Ms. C.O. took the baby to visit Mr. A. This was her first visit to British Columbia. Ms. C.O. planned to stay for two weeks. When it came time for Ms. C.O. and her baby to leave, Mr. A.’s mother took the baby and would not give her back to Ms. C.O. Ms. C.O. telephoned an emergency line for help. She followed the instructions given and took her baby to a convenience store. Before help could arrive, Mr.

A. found them and took them back to his mother’s home.

[ 16 ] Mr. A. was going to school during the day, so his mother watched Ms. C.O. and the baby to make sure they did not leave. Ms. C.O. stayed inside all day. She felt trapped. During this time, Mr. A. had girlfriends and made no secret of them. [ 17 ] While Ms. C.O. was pregnant with her second child in 1999, her life improved. Mr. A.’s sister moved in for about eight months. She had a daughter just a little younger than Ms. C.O.’s daughter. The two young mothers had common interests in their children. [ 18 ] In July, 1999, Mr. A. pushed Ms. C.O. over a chair in their bedroom. Ms.

C.O. could not afford a telephone to call for help, but as she stated, she had no one to call, anyway. As a result of the push, Ms. C.O. went into labour and their second child, a son, was born one month prematurely. [ 19 ] After their second baby was born, Mr. A. told Ms. C.O. that he would stop beating her and he did stop. After a short time, though, he started to beat her again. He would take the children upstairs to his mother and then beat Ms. C.O. When Mr. A. went out, his sister and mother watched over Ms. C.O. Ms. C.O. started to fight back when Mr. A. beat her. She was much smaller than him.

She did not win any of the fights. [ 20 ] Between 1998 and 2003, Ms. C.O. and Mr. A. moved four times. Ms. C.O. and Mr. A. had to rely on social assistance. As a result, they had unstable and unsuitable residences. In June, 2003, Ms. C.O. had their third child, a son. She walked to the hospital when she went into labour with him. [ 21 ] Although the process is not clear on the evidence, the children were in Mr. A’s mother’s care for about nine months. Ms. C.O. did what was required of her and she got all of her children back. [ 22 ] In May, 2005, their fourth child, a son, was born. Three month’s later, Mr.

A.’s mother passed away. After that, Mr. A. saw a family worker for help. He stopped beating Ms. C.O. and ignored her. They lived together as roommates. However, the violence resumed. The last incident of violence was in 2006, when Mr. A. threw Ms. C.O. down the stairs, dragged her by the hair and bruised her ribs. [ 23 ] Ms. C.O. stayed at home, except to walk the children to and from school. Once a week or so, she took the children to a community centre. She had no friends. Her family was still in Saskatchewan. [ 24 ] Mr. A. continued to have girlfriends. He made no secret of them. When Ms.

C.O. found out, she kicked him out. After a while, he would come home. This happened many times. [ 25 ] Eventually, Mr. A. went to Calgary to work for an uncle. Ms. C.O. was at home in Surrey, alone, with the children. During this time, one of Mr. A.’s sisters left her young son with Ms. C.O. for babysitting. The babysitting became so frequent that Ms. C.O. felt that she had five children. She was lonely and sad, without anyone to talk to. Mr. A. telephoned occasionally.

The children cried when he did this as he was away from them for months. [ 26 ] The Ministry of Children and Family Development has been involved with Ms. C.O. and her family since 1998. The children have been in care, voluntarily and by removal. Social workers’ concerns included parental neglect, insufficient health care and unhealthy living conditions and well as Ms. C.O.’s mental health. The Ministry has provided Ms. C.O. with some resources. [ 27 ] For a brief period in 2007, Ms. C.O. and Mr. A. were homeless.

They lived in a shelter in Surrey until they could find a home. [ 28 ] During the time that she has been with Mr. A., Ms. C.O. has had twelve miscarriages. She always wanted her own family. [ 29 ] In 2007, Mr. A. moved to Regina to live with his father. Ms. C.O. decided to take her four children to Regina to see Mr. A. and other family members. She managed to find bus fare for the four of them. When the bus arrived in Regina in the very early morning, no one was there to meet them. She called Mr. A. and he picked them up. [ 30 ] Ms. C.O. visited with her sister, K.O.

K.O. had problems taking care of her four children. Ms. C.O. noticed that K.O. had particular difficulty with her three year old daughter A.O. Ms. C.O. thought that K.O. and her other children were mean to A.O. After some discussion, K.O. and Ms. C.O. agreed that Ms. C.O. would take over care of A.O. K.O. put her consent in writing. K.O. said that she would come to Surrey for a visit in about a month. [ 31 ] Ms. C.O. and A.O. were essentially strangers to each other. Based on what her sister told her, Ms. C.O, believed that A.O. was toilet trained, could feed herself and could speak.

There were no issues with her health and behavior. [ 32 ] Mr. A. and Ms. C.O. found a car for the drive back to Surrey. They and the four children arrived home around September 1, 2007. [ 33 ] On October 4, 2007, Ms. C.O. told a worker with the Ministry that she was having problems with A.O. The worker asked Ms. C.O. to come to the Child Support Centre to discuss the situation. A ride was arranged for Ms. C.O. Ms. C.O. did not attend as offered. When the worker followed up, Ms. C.O. told the worker that she had called the receptionist but her call was not accepted. [ 34 ] Ms.

C.O. grew increasingly frustrated with A.O.’s behaviour. A.O. was not toilet trained. Ms. C.O. noted that A.O. drank her own urine, ate soap and spread her feces on the bathroom wall. None of her children had acted this way. K.O. did not come for a visit, adding to Ms. C.O.’s frustration. 2. The Offences [ 35 ] On October 21, 2007, A.O. put her dirty training pants under the bed. So, Ms. C.O. shook A.O. five times by the shoulders while A.O. was standing. Later, A.O. wet herself, so Ms. C.O. put her in the bath. The bath water was cool at first, so Ms. C.O. added hot water.

At this time, the thermostat on the hot water tank in Ms. C.O.’s apartment building was not working properly. The tank produced

very hot water. Ms. C.O. had complained to the building manager about the water being too hot. [ 36 ] Ms. C.O. put A.O. in the bathtub feet first, and then A.O. sat down. A.O. lay down in the water so that Ms. C.O. could wash her hair. A.O. was in the bath tub for ten minutes. Then, Ms C.O. took A.O. out of the tub and took her to a bedroom. When Ms. C.O. put a diaper on A.O., she noticed that A.O.’s buttocks and body looked “all red”. Ms. C.O. looked in a medical book and found information about keeping the skin cool. She soaked some towels in cold water and put them on A.O.’s back.

A.O. had a sip of water. [ 37 ] Ms. C.O. purchased some Polysporin and put it on A.O.'s back and hand. By this time, A.O.’s back was red and blistered. Ms. C.O. read a book to A.O. and fed her some french fries. Ms. C.O. cried because she knew A.O. was in pain. She knew that A.O. was in a lot of pain because when A.O. moved, she whimpered. [ 38 ] Mr. A. did not take A.O. to the hospital immediately because he administered traditional first aid. He did not trust doctors. He was frightened that if he took A.O. to the hospital, the police would think that he had injured her.

He knew that once he showed up at the hospital with A.O., the Ministry would remove his children from his care. [ 39 ] On the next day, A.O. still seemed tired and her skin was peeling. A.O. could not walk so Ms. C.O. took her to the tub and splashed cold water on her and carried her around to comfort her. [ 40 ] By October 24, 2007, Ms. C.O. wanted to take A.O. to the hospital. The burns were getting more obvious and had started to blister. A.O. would not sit up. A.O. would not walk. She would not stay awake. Ms. C.O. shook A.O. in an attempt to wake her. Later that day, Mr. A. dropped off Ms.

C.O. and A.O. at B.C. Children’s Hospital. [ 41 ] A.O. was immediately examined by two physicians. They noted that A.O. was not fully conscious and suffered from the following: second and third degree burns to about one quarter of her body; dehydration; and, numerous bruises. A.O. was obviously in pain. She could neither walk nor talk. The two physicians concluded that a reasonable caregiver would have noticed these injuries and symptoms and sought immediate medical attention for A.O. Ms. C.O. said that she took A.O. to the hospital when A.O.’s distress was very apparent to her. [ 42 ] Dr.

Margaret Colbourne, a pediatric specialist at the B.C. Children’s Hospital Child Protection Unit examined A.O. Dr. Colbourne wrote in her medical report: “This young 3 1/2-year-old girl presents with extensive burns and bruises to her and her body along with severe head injury(acute subdural hemorrhage and cerebral edema), and a fracture of the left radius and ulna. In addition she has evidence of intra-aural trauma, as well as a few burns which would be consistent with cigarette burns. This particular constellation of injuries is indicative of inflicted trauma and severe neglect.

At this point in time, she is extremely sick and it is uncertain as to her ultimate status. She will be followed closely in the intensive care unit. She will need an ophthalmological examination and a full skeletal survey as well as further head imaging.” [ 43 ] At the hospital, Ms. C.O. did not tell the truth about what happened because she was scared that they would not let her see A.O. 3. A.O.’s Life [ 44 ] Following her hospitalization in British Columbia, A.O. went to Regina on June 11, 2008.

She was immediately admitted to the pediatric inpatient unit at the Wascana Rehabilitation Centre for assessments, programming and equipment. On July 3, 2008, A.O. was discharged into the care of her mother, K.O. Since February, 2010, A.O. has been living in a foster home. The foster home has a wheelchair ramp and equipment to help A.O. get in and out of her wheelchair. [ 45 ] A.O. is a quadriplegic. She is mentally challenged as a result of her brain injuries. A.O. has cerebral palsy and scoliosis. She has seizures. She has pain every day. She has had surgery to reconstruct her right hip. A.O. uses a wheelchair.

She cannot walk, stand or sit independently. She is placed in a standing frame on a daily basis by a caregiver. A.O. vocalizes, but is unable to talk. She cannot read or write. She is alert and appears to recognize familiar people. She smiles and laughs. A.O. is unable to eat or drink by mouth. She has a gastronomy feeding tube surgically inserted into her stomach. The feeding tube provides for the administration of feeding product and fluids. A.O. wears diapers 24 hours per day. She does not use a toilet.

A.O. is dependent on a caregiver for all of her personal care. [ 46 ] A.O. attends a developmental Centre in Regina every day. The staff helps her with a physiotherapy program. The program is aimed at minimizing her orthopedic problems. The prognosis for A.O. is uncertain. 4. Ms. C.O. [ 47 ] Ms. C.O. loves Mr. A. and lives with him. Up until a few months ago, Mr. A.’s father lived with them. During the two years that Mr. A. Sr. lived in the home, he and Ms. C.O. had a very volatile relationship. Ms. C.O. stays in her room and reads or watches television.

She leaves her home only for appointments and court appearances. She has no friends or family here. Substance abuse is not an issue. [ 48 ] Ms. C.O.’s four children were removed in 2007. Ms. C.O. sees her children every other Monday for a supervised visit. [ 49 ] Ms. C.O. does not have a criminal record. She has followed her strict bail conditions without incident. Ms. C.O. has unsuccessfully sought help for her mental health issues in the past. She attempted to see a psychiatrist at a walk-in clinic but found that a

psychiatrist was not available. On other occasions, the waiting time was too long. [ 50 ] A psychiatric report was prepared for sentencing. Doctors LaTorre and Kubak wrote: “Ms. C.O.'s current presentation and her reported history suggest a possible diagnosis of a mood disorder, with an emphasis on Major Depression, and Posttraumatic Stress Disorder. Ms. C.O.'s intellectual capabilities were classified to be within the Borderline to Extremely Low range of functioning. Ms. C.O.'s current common-law relationship was reported to include verbal, physical, and even sexual violence.

On the basis of an overall evaluation of Ms. C.O. with the CAP Inventory and the additional assessment measures, as well as her clinical interviews, Ms. C.O. should be viewed as posing a relatively High risk for child physical abuse recidivism particularly if her underlying problems remain untreated and her extant stressors remained present.” [ 51 ] The doctors noted that Ms. C.O. is interested and motivated to begin psychological treatment. She has insight into the seriousness of her mental health problems and her need for help.

They recommended the following: simplified Cognitive Behavioural Therapy; parenting training; the development of a mental health safety plan; the development of a physical safety plan; and, the development of a social support network. [ 52 ] Ms. C.O. is truly and deeply sorry for what she did to A.O. She loved and still loves A.O. as one of her own children. She tried the best that she could to care for A.O., but she feels that she has failed not only A.O., but her family and herself. She is grateful for her family’s forgiveness, love and support.

This incident has taught her that she has much healing to do and she wants to try. While awaiting sentencing, Ms. C.O. has contacted a counselor without court direction. 5. Ms. C.O.’s family [ 53 ] Members of Ms. C.O.’s family have come to court in person. They have also attended by video link. They have done so to show their support for her. [ 54 ] K.O. wrote to the court that initially she was hurt because she trusted her sister to care for her A.O. like her own. She hated her sister for causing the injuries to A.O. Over time, though, this incident has actually brought the family together.

K.O. has forgiven her sister and loves her. She described her sister as a good mother, never hitting her children and using a “time out” for discipline. She wrote that she is thankful that A.O. is still there with her. She also wrote that it is time for closure for herself, her sister and her family. Also, “it's time to put this bad experience behind us and move forward”. [ 55 ] Ms. C. O.’s mother wrote to the court that everyone in the family has been changed because of this incident. There has been a lot to learn about taking care of A.O. She is concerned for Ms. C.O. and her four children.

She understands how the children’s separation from their mother has hurt them all. The mother does not condone what her daughter did to A.O., but she forgives her daughter. She, too, is grateful that A.O. is with the family. [ 56 ] One of Ms. C.O.’s uncles spoke at her sentencing. He is an elder, who has worked with the Regina police and the RCMP. He has worked in prisons. He pointed out that Ms. C.O. has been away from home for about ten years. She has been away from her family support and traditional life skills.

In his opinion, true rehabilitation will come with learning life skills that can only be learned at home. He was of the view that rehabilitation does not and cannot happen in jail. He asked that I consider that Ms. C.O. reached her breaking point when she committed the offences. Submissions of Counsel [ 57 ] Crown counsel submitted that incarceration for a period of two to four years is required to the address the principles of sentencing set out in the Criminal Code . But for Ms. C.O.’s aboriginal heritage, the Crown would seek a longer sentence.

Further, Crown counsel relied on the following cases in support of that position: R . v. S.E.C. , [2003] B.C.J. No. 1768 (B.C.C.A.) After eight day trial, the twenty-one year old offender was convicted of aggravated assault of a three year old child. The child suffered serious brain injuries and was unable to walk or sit up after the assault. The offender was on probation for assault of the same child. A psychological assessment indicated the offender was at a high risk to reoffend and would benefit from programming available through the federal penitentiary system.

The offender’s four year sentence was upheld on appeal. R . v. S.W.M. , [2006] B.C.J. No. 231 (B.C.S.C.) The nineteen year old aboriginal offender was found guilty of aggravated assault of his infant daughter. The infant suffered a massive skull fracture. The extent of the infant’s disabilities has yet to be determined. The offender broke the infant’s ribs on an earlier occasion. The offender had an unrelated youth record. The offender was sentenced to four and a half years but credited with the equivalent of twenty-six months in pre-trial custody, leaving a further twenty-eight months imprisonment.

R. v. B.O.J.T., [2006] B.C.J. No. 1298 (B.C.P.C.) After a preliminary inquiry, the offender pleaded guilty to criminal negligence causing bodily harm to his infant son. The offender wastwenty-one years old. The infant’s head injuries were so severe that he was not expected to live. The infant did survive and suffers fromnumerous, serious handicaps. The offender had a criminal record that included three prior assaults – one on his aunt, his girlfriend andone on the mother of his then girlfriend. The offender was sentenced to three and a half years imprisonment. R. v. O’Brien, 2000 BCCA 199 , [2000] B.C.J.

No. 669 (B.C.C.A.) The offender pleaded guilty to assault causing bodily harm t an eleven month old child he was babysitting. He was twenty years old. Hewas sentenced to nine months in jail and eighteen months probation. On appeal, a conditional sentence was rejected in light of theoffender’s attitude towards the offence, the risk to re-offend and the need for deterrence. The jail sentence was upheld. R. v. A.M., 2000 BCSC 803 , [2000] B.C.J. No. 1325 (B.C.S.C.) The twenty-five year old offender was convicted of assault causing bodily harm. The victim was a four year old child.

The offenderwas in a relationship with the child’s mother. The injuries to the child’s head and neck were inflicted while the child was asleep in hisbed. The sentence was eighteen months jail and three years probation. R. v. Klotz, [2004] B.C.J. No. 3033 (B.C.S.C.) The twenty-six year old offender pleaded guilty to a charge of aggravated assault of a three month old infant. The offender was theinfant’s mother’s boyfriend. The infant suffered a broken leg and two skull fractures. The infant recovered fully and there was nopermanent damage.

The court imposed a conditional sentence of two years less one day and three years probation. R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 The case sets out the principles for sentencing aboriginal offenders. Crown also referred to decisions from other provinces: R. v. Santana, [1995] O.J. 2141 (Ont. Ct. Just.); R. v. McCrindle, [1997] O.J.No. 5457 (Ont. Gen. Div.); R. v. Emans (2000), (ON CA), 146 C.C.C. (3d) 449 (Ont. C. A.); R. v. E.M., [2005] O.J.No. 386 (Ont. Ct. Just.); R. v. Habib, (ON CA), [2000] O.J. No. 3036 (C.A.); and, R. v. McCauley, (ON SC), [2007] O.J.

No. 1593 (S.C.). [58] Defence counsel submitted that a community based sentence is appropriate as such a sentence emphasizes healing andrehabilitation. Defence counsel provided information about several culturally-appropriate community resources that are available to Ms.C.O. The Law [59] The relevant provisions of the Criminal Code follow: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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 and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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, (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, 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) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The analysis for sentencing aboriginal offenders [ 60 ] In the Gladue decision (above) the Supreme Court of Canada clarified the meaning of the “circumstances of aboriginal offenders”. “How are sentencing judges to play their remedial role? The words of s. 718.2(

e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non- aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly: A. The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and B. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.” (para. 66) “In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender. While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In such cases where systemic 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.” (para. 69) [ 61 ] What are the unique systemic or background factors in this case? Ms. C.O. has lived her life in poverty, isolation and violence. For the last ten years, if not longer, she has been disconnected from her family and traditions that are her sources of strength and support. She continues to live in poverty and violence. She is socially isolated with no one to call upon for help.

Her home community still struggles with poverty, violence and offers few resources. Based on the evidence on sentencing, Ms. C.O. has had few realistic opportunities to change. In my view, the poverty, isolation and violence are precisely what brought Ms. C.O. to court. [ 62 ] Given these factors, would imprisonment deter Ms. C.O. and others in her situation? Ms. C.O. has been imprisoned for most of her life by these very same factors. Imprisonment, in some respects, means an improvement in her quality of life. She would have a stable residence free of the threat of violence from Mr. A.

She would have a social network. Therefore, I doubt that imprisonment would deter Ms. C.O. and anyone in similar circumstances. [ 63 ] Would imprisonment denounce these crimes in Ms. C.O.’s community? I take from the letters and submissions from her family that their answer would be a resounding “no”. Imprisonment certainly would satisfy the members of the public not fully informed of Ms. C.O.’s circumstances and who seek only retribution. However, that is not the community to which this sentence is addressed. [ 64 ] The remaining principles of sentencing still apply.

A fit sentence has to speak for A.O. and the serious offences that Ms. C.O. committed against her. A.O.’s life is forever changed by what Ms. C.O. did to her. The laws that we live by, both criminal and

traditional, recognize the precious lives of children. Those same laws require that we protect all children. [ 65 ] There can be no question that the offences were serious. It is established law that the more serious the offence, the less a role the unique circumstances of the aboriginal offender will play in sentencing: ( R . v. Wells , [2000] S.C.R. 207). However, in my view, Ms. C.O.’s unique circumstances are inextricably interwoven with the offences. [ 66 ] What is the fit sentence, or as it is called in First Nations Court, the healing plan?

I my view, it is clear on the evidence that this offender and these offences require a restorative approach to sentencing. [ 67 ] In Gladue (above), the court considered restorative justice: “But as a general matter of restorative justice involves some form of restitution and reintegration into the community….Restorative sentencing goals do not usually correlate with the use of prison as a sanction.” (para. 43) [ 68 ] This is an approach that ensures the prevention of crime and individual and social healing.

The emphasis must be on rehabilitation, restitution and re-integration. [ 69 ] In these circumstances, obviously restitution cannot be monetary. Ms. C.O. is poor. In any event, it would be impossible to assess what should be paid. Restitution means “making it right”. Rehabilitation is the road to get there. No one can undo the injuries to A.O. In my view, “making it right” in this case means two things: providing Ms.

C.O. with aboriginal-based services and resources so that she can address her mental health issues: and, ensuring that she addresses her mental health issues in a meaningful way. [ 70 ] As culturally-appropriate services and hence restorative justice options are available, the decision in S.W.M. (above) is distinguishable. [ 71 ] Re-integration means monitoring, encouraging and assisting Ms. C.O.’s rehabilitation so that she can be a responsible parent and a full member of her family and community. [ 72 ] Ms.

C.O. is a good candidate for a community-based sentence for these reasons: she pleaded guilty; she was otherwise of good character and without a Criminal Record; she has complied with her terms of bail; there are appropriate community resources available; and, she appears to be genuinely motivated to start her rehabilitation. Further, giving weight to the Psychiatric Assessment, if Ms. C.O. has help for her mental health issues, her risk to re-offend is lowered. [ 73 ] However, given the serious offences, the community is entitled to have confidence that Ms.

C.O. will follow through with the terms of her sentence. The community should be assured that should Ms. C.O. not follow through, there will be immediate and harsh consequences. [ 74 ] Having determined that imprisonment would not address deterrence and denunciation and that Ms. A.O. is a good candidate for community supervision, I conclude that the following sentence addresses all of the principles of sentencing – a conditional sentence order for two years less one day. That is the maximum time allowed by law. Ms. C.O. has much work to do that cannot be accomplished quickly.

The conditions are aimed at providing the necessary resources for her. The nature of a conditional sentence order, being a jail sentence that is served in the community, provides the community with confidence that Ms. C.O. will follow-through with her conditions. [ 75 ] After that conditional sentence, Ms. C.O. will be on probation for the maximum period of three years. Again, the probation is aimed at providing resources for healing. [ 76 ] In total, Ms.

C.O. will be in the criminal justice system for five years – one year longer than she would be had I accepted the maximum sentence suggested by the Crown. [ 77 ] These are the conditions for the concurrent two year less one day Conditional Sentence orders: 1. Keep the peace and be of good behavior. 2. Appear before the Court when required to do so by the Court. 3. Report to a Supervisor by 4 p.m. today at 2610 Mary Hill Road, Port Coquitlam, BC and thereafter when required to the Supervisor, and in the manner directed by the Supervisor. 4.

Remain within the Province of British Columbia, unless written permission to go outside of the province is obtained from the Supervisor. 5. Notify the Supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation. 6. You must attend for and accept such aboriginal based programming and counseling as directed by your Supervisor, including but not limited to: • psychiatric and psychological assessments and treatment; • post-traumatic stress counseling; • trauma counseling;

• family and parenting counseling; • and such programming and counseling may include aboriginal residential treatment programs. 7. You will take reasonable steps to maintain yourself in such condition that: your mental illness will not likely cause you to conduct yourself in a manner dangerous to yourself or anyone else; and it is not likely you will commit further offences. 8.

You will attend as directed by your Supervisor at a Forensic Outpatient Clinic for the purpose of receiving such medical counseling and treatment as may be recommended except that you shall not be required to submit to any treatment or medication to which you do not consent. 9. If you do not consent to the form of medical treatment or medication which is prescribed or recommended, you shall immediately report to your Supervisor and thereafter report daily to your Supervisor. 10. You shall provide your treating physician with a copy of this Order and the name, address and telephone number of your Supervisor.

You shall instruct your treating physician if that if you fail to take medication as prescribed by him or her or fail to keep any appointment made with him or your, your treating physician is to advise your Supervisor immediately of any such failures. 11.

You must not have in your possess any weapon as defined by the Criminal Code , including any knives unless for the immediate preparation or consumption of food, or any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any authorizations or registrations held by you until dealt with according to law. 12. You must abstain absolutely from the consumption and possession of alcohol or any non-prescription drugs or substances referred to in the Controlled Drugs and Substances Act for which you do not have a prescription. 13.

You will not be alone with a child or children under the age of fourteen years. 14. You will remain inside your residence between the hours of 10 p.m. and 6 a.m. daily, unless you have written permission from your Supervisor to be outside of your residence during those hours. On those occasions, you must carry that written permission with you. 15. On dates arranged by your Supervisor, you shall appear before this court for reports on your compliance with these conditions. [ 78 ] These are the conditions for the concurrent three year probation orders: 1. Keep the peace and be of good behavior. 2.

Within seventy-two hours of the completion of the conditional sentence orders, you will report to a Probation officer at 2610 Mary Hill Road, Port Coquitlam, BC and thereafter as directed by your Probation Officer. 3. Give your home address to your Probation Officer and do not change that address unless you have prior written permission of your Probation Officer. 4.

Under the direction and to the satisfaction of your Probation Officer, you will take aboriginal-based counseling and programming which may include, but is not limited to psychiatric and psychological assessments and treatment; • post-traumatic stress counseling; • trauma counseling; • family and parenting counseling; • and such programming and counseling may include aboriginal residential treatment programs. 5.

You will attend as directed by your Probation Officer at a Forensic Outpatient Clinic for the purpose of receiving such medical counseling and treatment as may be recommended except that you shall not be required to submit to any treatment or medication to which you do not consent. 6. If you do not consent to the form of medical treatment or medication which is prescribed or recommended, you shall immediately report to your Probation Officer and thereafter report daily to your Probation Officer. 7.

You shall provide your treating physician with a copy of this Order and the name, address and telephone number of your Probation Officer. You shall instruct your treating physician if that if you fail to take medication as prescribed by him or her or fail to keep any appointment made with him or your, your treating physician is to advise your Probation Officer immediately of any such failures. 8. Under the direction of and to the satisfaction of your Probation Officer, you shall attend education or vocational programming. [ 79 ] There are further orders: on count one, a ten year firearm prohibition under

section 109 of the Criminal Code and a DNA order under

section 487.051 of the Criminal Code . Finally, surcharges are waived.

________________________________ Judge M. Buller Bennett Provincial Court of British Columbia Note: this version contains typographical corrections in paragraphs 20, 24, 37, 70 and 77 of the original.