R. v. Peeace, 2021 BCPC 256

Citation: R. v. Peeace 2021 BCPC 256 Date: 20211027 File Nos: 259284-5-C and 259621 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. STORM SHADOW PEEACE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: J. Lawton Counsel for the Accused: C. Hiebert Place of Hearing: Vancouver , B.C. Date of Hearing: September 14, 2021 Date of Judgment: October 27, 2021

INTRODUCTION [ 1 ] On June 9, 2019, Mr. Peeace entered a single room residence and violently attacked two people with a machete. On September 8, 2020, Mr. Peeace was found in possession of a loaded sawed off semi-automatic rifle. The task for this Court is to consider all of the circumstances and impose fit sentences. CIRCUMSTANCES OF THE OFFENCES Information 259824-C-5 – Aggravated Assault [ 2 ] On June 9, 2019, the police attended a single room occupancy building located in the downtown east side of Vancouver. On arrival, the police found Ms. Fortney and Mr.

Eyre who had injuries consistent with having been attacked with a machete. [ 3 ] An investigation was commenced and with the aide of CCTV footage and witness statements, the police determined that a t approximately 11 p.m., Ms. Fortney and her boyfriend, Mr. Eyre, were inside her suite when Mr. Peeace, Mr. Warsame, and an unknown male, exited Mr. Peeace’s room. Thereafter, the group went to the second floor and lined up in the hallway outside of the door to Ms. Fortney’s suite. [ 4 ] While the group was outside, the third male put on a balaclava. Thereafter, Mr.

Peeace presented himself at the door and he knocked. Ms. Fortney answered the door, and the group rushed in with Mr. Peeace leading the way. [ 5 ] When the group entered, Mr. Eyre was seated on a bed and he told them to, “Back the fuck up”. Mr. Warsame responded by stating, “You know me-don’t ever tell me to back the fuck up”. Mr. Warsame then removed a handgun from his waistband, pointed it at Mr. Eyre, cocked it, and stated, “Give it up, give it all up and you won’t get hurt.” When Mr. Warsame produced the handgun, Mr. Peeace produced a machete that he had been concealing in his right pant leg. [ 6 ] Mr.

Eyre grabbed for the handgun and a struggle commenced, during the struggle, Mr. Warsame repeatedly hit Mr. Eyre in the head and body with the gun, and Mr. Peeace hit Mr. Eyre with the machete, cutting Mr. Eyre’s torso and hands. While this was occurring, Ms. Fortney tried to kick Mr. Peeace, who responded by striking her in the leg with the machete. During the attack, Mr. Eyre managed to spray the males with pepper spray causing them to flee. [ 7 ] On fleeing, Mr. Peeace went outside to a nearby lane where he concealed the machete.

Ultimately, the police recovered the machete and testing revealed the presence of Mr. Eyre’s and Mr. Peeace’s DNA. [ 8 ] As for injuries, Ms. Fortney received 40 stitches to repair a four to five inch laceration to her left leg. Mr. Eyre’s left thumb was nearly severed and he underwent surgery to repair tendons and nerves in his left thumb. Information 25962 – Possession of a Loaded Prohibited Firearm [ 9 ] On September 8, 2020, a citizen called 911 reporting that he had witnessed a male ripping branches from a tree and attempting to light a fire.

He described the male as carrying a duffel bag and that the male had removed a machete from the bag. [ 10 ] In response to the 911 call, the police located Mr. Peeace and observed that he appeared to be under the influence of drugs. Ultimately, the police searched Mr. Peeace and the duffle bag that he was holding. During the search, the police located a folding knife attached to Mr. Peeace’s right pant pocket, and inside the duffle bag they found a loaded sawed off SKS semi automatic-rifle and a sheathed machete. At the time, Mr.

Peeace was bound by a Release Order prohibiting him from possessing firearms, prohibited weapons, and knives. He was also prohibited for life from possessing any firearm or ammunition. VICTIM IMPACT STATEMENT [ 11 ] A victim impact statement was requested from Ms. Fortney and Mr. Eyre and although they were initially cooperative with the authorities, they did not submit victim impact statements.

The Crown theorizes, and I agree, that the context of living in the downtown eastside makes it difficult for one to convey information to the authorities. [ 12 ] Despite the lack of information, it is obvious that the armed intrusion into one’s residence and a subsequent machete attack would cause even the most hardened individual emotional upset and lingering trauma. As for the injuries, there is no doubt they were painful and the healing took some time resulting in some scarring. [ 13 ] Lastly, in considering the matter, I also recognize the disruption that the attack likely caused to a fragile community.

Specifically, rooming houses are homes to some of society’s most vulnerable and I have no doubt that the violence and the ensuing chaos likely caused fear for many who simply counted to live in a peaceful and safe environment. MR. PEEACE’S CIRCUMSTANCES [ 14 ] Mr. Peeace is 29, and he identifies as an Indigenous person with Cree and Saulteaux heritage. He is eligible to become a member of the Yellow Quill First Nation because his father is a member. [ 15 ] In terms of his upbringing, Mr. Peeace was born in Calgary and his parents separated when he was two years old.

His father, Wallace Peeace, moved to New Westminster where he struggled for years with substance abuse. Thereafter, Mr. Peeace lived with his mother and a stepfather, however, after a number of years the two separated. After the separation, Mr. Peeace would visit his stepfather and when he was six, Mr. Peeace was asked where he wanted to live and he selected his stepfather’s home. Sadly, Mr. Peeace’s mother took her life within two days of Mr. Peeace moving to his stepfather’s residence. [ 16 ] Mr.

Peeace stayed with his stepfather until he was 11, at which time he moved in with his maternal aunt, who introduced him to

crack cocaine and encouraged him to steal and shoplift. Sadly, and in

summary, Mr. Peeace’s upbringing was chaotic, horrific and it saddens one to think about the circumstances of his early life. [ 17 ] Ultimately, the Ministry became involved and Mr. Peeace was taken into care. This resulted in Mr. Peeace’s involvement with the Closer to Home Foster Care Program, which is an Indigenous program involving counselling and sweat lodge ceremonies. Mr. Peeace liked the program because it made him feel better. [ 18 ] By age 16, Mr. Peeace was living on the streets, using drugs, and a member of The Fresh Off the Boat gang in Calgary. While with the gang, Mr. Peeace became an enforcer.

Ultimately, he fell out of favor with the higher ups and fearing for his life, he fled to Vancouver. Once in Vancouver, Mr. Peeace contacted his father, who by this time had achieved sobriety and was participating in counselling. The two, now have frequent contact, and his father is doing his best to support his son. [ 19 ] Further to his background, Mr. Peeace, has a grade 9 education and he has a limited employment history. His counsel points out the low education speaks to a failure by the system, whereby they failed to encourage, support or mentor, Mr.

Peeace, rather, they removed him from mainstream schooling and “housed” him in “alternative” schools. [ 20 ] In terms of mental health, Mr. Peeace suffers from anxiety, depression, substance abuse, substance induced psychosis and ADHD. Although, counselling and medication has been available to Mr. Peeace, he struggles with the commitment necessary for success. [ 21 ] Mr. Peeace has an extensive criminal history.

His record starts in 2008, and includes offences for robbery, assault, assaulting a peace officer, carrying a concealed weapon, obstruction, theft and failure to comply with court orders. [ 22 ] A pre-sentence report was prepared and it confirms Mr. Peeace’s history and circumstances. In terms of Mr. Peeace’s insight into his offending the report states: Storm appears to have limited insight into his behaviors. He struggles heavily with alcohol consumption and substance abuse, as well as with mental health concerns.

He has expressed intentions to follow through with resources and counselling however had not demonstrated a consistent and reliable pattern of doing so. [ 23 ] Similarly, the writer summarized: Storm presented as open and honest about his life struggles and appears to have some insight into the negative factors and events that have led him to being involved with the criminal justice system. He acknowledges he struggles with following through on his motivation to change his behaviors. [ 24 ] It is apparent from the pre-sentence report that Mr.

Peeace received benefits from being involved with the Downtown Community Court Case Management Team. Specifically, he obtained housing, he attended art therapy, and he participated with the community kitchen. He also connected with Native Court Worker, Kevin Hill. Those involved with Mr. Peeace, felt that he was a reliable reporter who engaged with the team. [ 25 ] Turning to his attitude regarding his offences, Mr. Peeace acknowledges the seriousness of possessing a firearm and maintains that he did not have nefarious intentions.

Of note is, he stated to the pre-sentence report writer that the possession occurred because he was keeping what he had found. In contrast, it was submitted by his counsel that Mr. Peeace was holding the firearm for another person. [ 26 ] In terms of sentencing options for Indigenous offenders, the pre-sentence report confirmed that federal institutions offer an Aboriginal Continuum of Care model, where it is believed that an Indigenous offender’s participation in spiritual and cultural activities is directly related their success.

On entry into an institution, Indigenous offenders will have access to an Elder, traditional circles, a smudging kit, and an Aboriginal Liaison Officer. Thereafter, an Aboriginal Healing Plan is developed in consultation with an Elder. Such an approach is consistent with the pre-sentence report writer’s observations that Mr.

Peeace is amenable to accessing Indigenous resources and working with Native Liaison workers with the intention of developing a connection with his heritage. [ 27 ] As for provincial institutions, BC Corrections offers an Integrated Offender Management Program as well as Core Programs, including a 12 session psycho-educational Substance Management Program.

It also assists offenders with their reintegration by connecting them with resources such as substance abuse programs, housing and social services. [ 28 ] I have reviewed the Gladue report prepared by Robert Coulter and it has greatly assisted me in understanding Mr. Peeace’s background, his heritage and the generational trauma and suffering that Mr. Peeace and his relations have endured. [ 29 ] Mr. Peeace’s father is a member of the Yellow Quill First Nation and his mother was a member of Beardy’s First Nation. By virtue of his father’s heritage, Mr.

Peeace is eligible to be registered as a member of the Yellow Quill First Nation. Mr. Peeace’s paternal grandparents and his mother attended residential school and although his father did not attend residential school, he was subjected to bullying, violence and discrimination. [ 30 ] In addition to the broad systemic factors negatively impacting Indigenous persons, the Gladue report documents the following impacts for Mr.

Peeace, his family and community: intergenerational impacts of colonialism, physical/sexual abuse experienced by family, history of residential school, loss of parenting skills, mother’s suicide, gang involvement, substance abuse and addiction, low levels of education, foster placement, family break down, mental health challenges and homelessness. [ 31 ] Clearly, Mr. Peeace derived benefits working with Indigenous elders as documented by Mr.

Coulter: Storm talked about his time working with Blackfoot Elders when he was fifteen and said, “they told me I was good and I want to go back to that.” Storm explained, “I need help to deal with my thoughts about suicide and addiction” and “I am willing to get back to my cultural programs and learn to deal with my anxiety and depression issues” and then he further stated, “I want to be in a cultural treatment

program that I can work at so I can get back to being with my family members again.” POSITIONS OF THE PARTIES The Crown [ 32 ] The Crown argues the facts and circumstances supports a jail sentence of four to five years for the aggravated assault and a three year consecutive sentence for the firearm offence. Given that the combined total sentence would be imprisonment for seven to eight years, the Crown urges the Court to consider the totality principle and impose a sentence of six years less time already served. The Crown relies on the following: R. v. Sesay , 2020 BCCA 41 ; R. v. Larose , 2013 BCCA 450 ; R. v.

Hurtado , 2012 BCCA 47 ; R. v. Beaulieu , 2015 BCSC 354 ; R. v. Payne , 2007 BCCA 541 ; R. v. Woodward , 2011 BCCA 251 ; R. v. Perrault , 2006 BCCA 215 ; R. v. Billing , 2017 BCSC 1107 ; R. v. George , 2014 BCSC 1944 ; R. v. Barahona , 2018 BCPC 74 ; R. v. Lagimodiere, 2013 BCCA 174 ; R. v. Sellars , 2018 BCCA 195 ; R. v. Kachuol , 2017 BCCA 292 ; and R. v. Wickes , 2019 BCSC 1373 . The Defence [ 33 ] The defence suggests a sentence of time credited of approximately 18 months for the firearms offence and a sentence of two years less a day for the aggravated assault.

In the alternative, counsel suggests a three year sentence for each offence with the sentences running concurrently. In support, counsel refers to Mr. Peeace’s horrific upbringing, his desire to rehabilitate, his re-connection with his father and his Indigenous background as factors justifying the purposed sentence. Counsel relies on the following: R. v. Paquette , 2012 BCSC 1497 ; R. v. Richards , 2016 BCPC 228 ; and R. v. Smallboy , 2018 BCPC 383 .

PURPOSE AND PRINCIPLES OF SENTENCING [ 34 ] A court tasked with imposing a sentence must consider the purposes and principles of sentencing as set out in s. 718 to s. 718.2 (

f) of the Criminal Code . The purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a sentence that is focused on one or more sentencing objective. [ 35 ] In the instant case, the sentence imposed must serve to express society’s abhorrence for Mr. Peeace’s violent and unlawful conduct. Additionally, the sentence must deter Mr. Peeace and others from violence and the possession of firearms. Lastly, and based on Mr.

Peeace’s age, the support of his father and his desire to engage in cultural treatment, I find that any sentence imposed must consider Mr. Peeace’s rehabilitation. Proportionality [ 36 ] In considering an appropriate sentence, I am mindful that proportionality is a fundamental principle of sentencing. In this regard, the sentence must be adjusted to reflect the seriousness of the offence and the degree of the offender’s moral culpability. [ 37 ] Applying the above, Mr. Peeace’s offences are serious.

The aggravated assault caused notable injuries and pursuant to s. 268(2) of the Code, the maximum available sentence is imprisonment for 14 years. As for the firearms offence, given that this is Mr. Peeace’s first firearms conviction, pursuant to s. 95(2)(ii) of the Code, the maximum available sentence is imprisonment for three years. [ 38 ] In terms of Mr. Peeace’s moral culpability, the presence of the weapons, the number of persons involved and the method of entry, shows planning and deliberation which speaks to a higher level of culpability.

However, the culpability analysis also requires recognition of the role that Mr. Peeace’s Indigenous background played in bringing him to the offence. In this regard, I recognize that colonization and the mistreatment of Indigenous persons has contributed directly and indirectly to Mr. Peeace’s low self-esteem, trauma, addiction, poverty, low education, and loss of community support and guidance and, therefore, I conclude that Mr.

Peeace’s culpability was reduced. [ 39 ] With respect to the firearms offence, I accept that his decision to retain the firearm was impulsive and that it occurred at a time wherein he was homeless and heavily addicted. Accordingly, I find his moral responsibility lessened and further lessened by his Indigenous background. Aggravating and mitigating factors [ 40 ] I find the nature of the assault to be aggravating. In this regard, Mr. Peeace was involved in the coordinated and armed entry into Ms. Fortney’s home, thereafter, and without provocation, he caused serious injury to two unarmed persons. Mr.

Peeace’s history of violence is also aggravating. Finally, it is aggravating that Mr. Peeace possessed the firearm, contrary to prohibition orders. [ 41 ] In mitigation, Mr. Peeace’s guilty plea is substantially mitigating. Through his plea, Mr. Peeace not only saved the state the time and resources associated with a trial, but he also saved the victims the discomfort of having to come to court and revisit traumatic events. I also find that Mr.

Peeace is genuinely remorseful and in this regard, I observe his plea, his comments to the Court and his cooperation with the preparation of the pre-sentence and Gladue reports. Similar sentences [ 42 ] Although s. 718.2(

b) of the Code, requires that similar sentences be imposed on similar offenders for similar offences, I recognize that sentencing is an individualized process wherein the unique characteristics of each offender and offence are considered. It is important to recognize that ranges are guidelines and they do not represent inflexible boundaries and that individual circumstances may justify going above or below the range: R. v. Lucasse , 2015 SCC 64 ; R. v. Voong , 2015 BCCA 285 . Aggravated assault [ 43 ] I remind myself that the application of the sentencing range in assault cases is variable to the context of the assault. In this

regard, Justice Prowse observed in R. v. Johnson, [1998] B.C.J. No. 2924 (C.A.) , at para 10 : Sentences at the lower end of the range tend to be imposed in "fight" situations in which the altercation escalates and results in injuries to the victim.

Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon, without provocation and without any opportunity to defend themselves. [ 44 ] Similarly, Justice Saunders noted in Larose at para. 17 , that the circumstances in which the offence of aggravated assault may be committed are variable and difficult to organize into categories. [ 45 ] In Sasay, the offender’s appeal of a six and one half year sentence was substantively dismissed.

The offender was convicted of aggravated assault after he “sucker” punched a stranger, resulting in the person falling and suffering a serious brain injury. The offender was 34, he had an unfortunate upbringing, he had a “horrendous” record and he had previously served time in a federal penitentiary.

In dismissing the appeal, the Court found no errors that impacted the sentence, however, the Court made an allowance for a slight error in calculating the pre-sentencing time available to the offender. [ 46 ] In Larose , the offender’s appeal of two concurrent seven year terms of imprisonment imposed for two counts of aggravated assault was dismissed. The circumstances of the offences were; during a street altercation, the offender slashed and stabbed the first victim. He then slashed the neck of a second victim.

The offender was 20 at the time of the offence, he had a difficult upbringing, he abused drugs, and he had a sporadic work history. The offender had four convictions for assault, convictions for property offences and at the time of his offence he had a court condition prohibiting him from possessing weapons.

In dismissing the appeal, the Court noted the circumstances of the offences justified a sentence beyond the range established in Craig and concluded that the sentencing judge did not err. [ 47 ] In Hurtado , the Crown appealed the offender’s effective sentence of five years for the offence of aggravated assault. The offender was 22 at the time of the offence and the offence occurred after the victim approached the offender and spoke to him about his interaction with two women essentially telling the offender that his conduct was wrong. Thereafter, the victim joined a group of friends.

The offender left and retrieved a box cutter, and after about 10 minutes, he returned, approached the victim from behind and slashed him across the throat. In dismissing the appeal, the Court concluded that the offender’s relative youth and his remorse required that rehabilitation be considered as a sentencing option. Of note, are the following helpful comments: [20] Although I am not persuaded that we should interfere with this sentence, I am reluctant to agree that the range here was two to six years.

Where there is unrestrained violence such as occurred here, coupled with stalking and a surprise attack, I think the lower end is more than two years and the upper end is about eight years, with the possibility of sentencing above eight years in particularly egregious circumstances. This is often a difficult offence for which to fashion an appropriate sentence and I am not attracted to a practice of breaking down the types of aggravated assault and suggesting a relatively narrow range for each type.

Sentencing in this area is very subjective having regard to the particular aggravating and mitigating factors which can vary greatly from case to case. [ 48 ] In Beaulieu , the offender was serving a federal sentence when he assaulted a correctional officer by slashing her face. The attack was unprovoked, planned and done using the element of surprise. The offender was 43, Indigenous, and he had an extensive criminal record, including four federal sentences.

From the materials filed at the sentencing hearing, it appeared that the offender was suffering from a serious mental health illness that had not been diagnosed and therefore untreated. The sentencing judge acknowledged the offender’s Indigenous heritage, but only to the extent of recognizing that historic and systemic factors contributed to the over representation of Indigenous persons in the justice system. The offender received a seven year sentence. [ 49 ] In Payne , the offender’s appeal of an eight year sentence was dismissed.

In that case, the offender was involved in the drug culture and he severed the victim's finger and kept it as a prop to threaten others. In my view, the factual matrix is substantially different than the facts in the instant matter, including, the statutorily aggravating finding that the offences were committed for the benefit of a criminal organization: See para. 46. [ 50 ] In Woodward , the offender’s appeal of a six year sentence for aggravated assault was dismissed.

The facts of the case are; the offender was at a pub wherein the clientele was predominately gay, lesbian, and transgendered persons and while there he sucker punched a person who was 61 and celebrating his retirement. The punch rendered the victim unconscious and he fell to the floor striking his head. The victim suffered a permanent brain injury rendering him in need of lifelong assistance. In dismissing the appeal, the Court noted that the sentencing judge’s conclusion that the attack was motivated by bias and hatred towards homosexuals.

It was also noted by the Court that the attack was deliberate and that the victim was unable to protect himself owing to the assault being unanticipated. The aggravating factor of bias, the severity of the injury, and the nature of the attack are highly distinguishable from Mr. Peeace’s circumstances. [ 51 ] In Perrault , the offender slashed the victim with a knife causing the victim’s internal organs to be exposed and endangering his life. The attack was unprovoked and in furtherance of collecting on a drug debt. The offender was 31, with a criminal record, including aggravated assault and weapons offences.

On appeal, the Court set aside an 18 month conditional sentence order and increased the sentence to an effective sentence of three years. At para. 8, the Court commented: I think a sentence of four years would have been fit in this case with a reduction to three years to recognize the positive steps taken by the respondent toward rehabilitation. [ 52 ] In Billing , the offender received a three year sentence after being convicted by a jury of aggravated assault. The assault occurred in the course of a fight where the offender produced a knife and stabbed the victim six times, puncturing the victim’s lung.

The offender was 36 and he was Indigenous. His childhood involved sexual abuse, family violence, alcoholism, instability and psychiatric illness. The offender had substance abuse challenges, he had a lengthy criminal record and on the date of the assault, he had consumed drugs. In my view, the assault occurring in the context of a fight makes the case distinguishable and resulted in a lower sentence: See: para. 67. [ 53 ] In George , the intoxicated offender was engaged in a drug purchase with the victim, when he struck the victim seven times with a meat cleaver.

The attack occurred without provocation or warning. The victim required 156 staples to close the lacerations to his head, he

had considerable scarring, he suffered from dizziness and stammering, he had multiple seizures for a period of time after the attack, and his balance was adversely impacted. The offender was 31, and he had an extensive criminal record. In his childhood, the offender’s father had been violent and abusive to the offender and his mother. The accused had a history of substance abuse, he had a grade 11 education and he had difficulty maintaining employment.

The trial judge sentenced the offender to four years imprisonment with credit for time spent in pre-sentence custody. [ 54 ] In Barahona , the offender was convicted of two counts of aggravated assault, two counts of assault with a weapon and a single count of assault. The offences were committed in the context of a house party. In this regard, the offender engaged in a consensual fight and incapacitated victim 1, victim 2 stepped between victim 1 and the offender, and the offender responded by stabbing victim 2 in the leg. The offender then turned his attention to victim 1, stabbing him four times.

Both victims suffered serious but non-permanent injuries. The offender was 26, he was Indigenous and as a child he was exposed to domestic violence and drug use. The offender had been involved in the drug trade, he had limited education, and he had three convictions for violent offences. The offender was sentenced to an effective sentence of two years and four months.

On imposing sentence, the judge considered that the offender had spent a year under house arrest and gave weight to the objectives of rehabilitation and restoration. [ 55 ] In Lagimodiere , the offender and the victim were friends and after having consumed some alcohol, the offender assaulted the victim. The victim suffered a spinal fracture rendering him a paraplegic and reducing his cognitive function. The offender had a lengthy record, including convictions for assault, he was an alcoholic, and he was Indigenous.

Following conviction, the trial judge concluded that the range of sentence was a year or two on either side of six years, and after crediting the offender with one year of pre-sentence custody, imposed four additional years, for an effective sentence of five years. [ 56 ] In Paquette , the offender pled guilty to aggravated assault. The circumstances of the offence were; the offender pursued a security guard, struck him on the back of the head, and kicked him until he was unconscious. The victim suffered skull fractures resulting in ongoing neurological issues and loss of employment.

The offender was Indigenous, he had been physically and sexually abused as a child, he had a lengthy criminal record; however, he had not offended for five years post offence. In fact, there was almost four years between the offence and sentencing, where the offender complied with community supervision. The offender was sentenced to two years custody followed by probation. [ 57 ] In Richards , the offender plead guilty to aggravated assault and he received a 39-month custodial sentence. The circumstances of the offence involved the 79 year old victim, asking the offender to leave his property.

The offender responded by beating the victim causing displaced nasal bones, a nasal fracture, a fractured jaw and permanent partial hearing loss. The offender was 27 and Indigenous. He had a criminal record with convictions for a number of serious assaults, he had mental health issues and he was a high risk to reoffend violently. In his reasons for sentence, Judge Doherty concluded that the offender’s violent history, the circumstances of the offence and his high risk to reoffend necessitated a sentence that protected the public from the offender.

Firearm Offences [ 58 ] In Sellers, the Crown successfully appealed a suspended sentence that was imposed after the offender was convicted of possessing a firearm. The offender was a passenger in a truck that was stopped and searched by the police. During the search, the police located a loaded handgun. The offender maintained he possessed the gun to protect himself and his family from gang violence. The offender was 27 and Indigenous. When he was 16, he became part of a gang and, thereafter, he was heavily involved in criminal activities.

When he was young, the offender began drinking and consuming drugs to excess and by 19, he was diagnosed with alcoholic pancreatitis. Eventually, the offender completed a treatment program, he left the gang, and he stopped abusing substances. Despite this, the violence in his community, including the murder of his brother and the death of a friend, resulted in depression and two suicide attempts. Ultimately, the offender separated himself from his community and previous affiliations.

On allowing the appeal, the Court of Appeal concluded the sentencing judge erred in holding that the possession of the firearm was not for an illicit purpose. The suspended sentence was varied and a two year conditional sentence order was imposed. In deciding to impose a conditional sentence order, the Court acknowledged the offender’s substantial rehabilitative efforts and concluded there was justification for imposing a sanction below the range.

Notably, in considering the matter, the Court made the following comments regarding the bottom end of the range for firearm offences: [25] This Court has also addressed the gravity of these types of offences. In R. v. Holt, 2015 BCCA 302 , the offender was stopped for a traffic violation and found to be in possession of a loaded restricted firearm without a licence, contrary to s. 95(1) of the Criminal Code .

On a Crown appeal from a sentence of 18 months’ imprisonment, this Court found the judge had erred in principle by failing to give sufficient weight to the principles of denunciation and deterrence in order to reflect the seriousness of this offence. Speaking for the Court, Madam Justice Newbury observed that “the possession of a loaded firearm does pose a serious threat, and a growing one, to communities across Canada” and that “[t]here is no reason why British Columbia courts should take this threat less seriously than other Canadian courts now do” (at para. 18).

Consequently, she determined that a re-alignment of the range of sentences for firearms offences in British Columbia was required, and indicated that the bottom end of that range should be close to three years’ imprisonment. In the result, the Court increased the sentence to 30 months’ imprisonment. [ 59 ] In Kachuol , the Crown’s appeal of a twenty-three month conditional sentence order was successful, with the Court substituting a three year jail sentence. The offender was charged, after he was stopped by the police for an impaired driving investigation.

When his car was searched, the police located a loaded handgun. At the time of the offence, the offender had a firearms prohibition. The offender had community support, he was helping his mother and shortly before sentencing, he was attacked resulting in traumatic brain injury and weakness to his arm and leg. In considering the matter, the Court of Appeal concluded that the sentencing judge erred by not characterizing the offender’s conduct as a true crime.

In considering an appropriate sentence, Justice Dickson confirmed public safety necessitates that denunciation and deterrence be the primary sentencing objectives for offences involving firearms. At para. 25, Justice Dickson observed: [25] In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose.

As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s

condemnation and punish offenders. To the extent possible, courts strive to achieve these goals when imposing sentences for firearms-related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fullyaccounting for aggravating factors where they exist. Aboriginal Offenders [60]

Section 718.2 (

e) of the Code mandates that all available sanctions that are reasonable should be considered with particularattention to the circumstances of Aboriginal offenders. Justice DeWitt-Van Oosten, in R. v. Billing, 2017 BCSC 1107, commented on theapplication at paras. 46 to 53 stated: [46]

Section 718.2(

e) of the Code provides that when imposing sentence, all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered, with particularattention to the circumstances of Aboriginal offenders. [47] In R. v. Ipeelee; Ladue, 2012 SCC 13, the Supreme Court re-affirmed that s. 718.2(

e) is a "remedial provision designed toameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges tohave recourse to a restorative approach to sentencing": at para. 59, citing R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [48] In sentencing an Aboriginal offender, the Court must consider: (

a) the unique systemic or background factors which may haveplayed a

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

b) the types of sentencing procedures and sanctionswhich may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection:Ipeelee, at para. 59. [49] When considering "unique systemic or background factors", the Court must take judicial notice of: [60] … such matters as the history of colonialism, displacement, and residential schools and how that history continues to translateinto lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course highlevels of incarceration for Aboriginal peoples: Ipeelee, at para. 60. [50] The Court must also consider any "individualized information" about the accused person as an Aboriginal offender: Ipeelee, atpara. 60. [51] Paying close attention to both systemic and individualized factors allows the Court to better achieve a sentence that isproportionate to the gravity of the offence and the degree of responsibility of the offender.

"Many Aboriginal offenders find themselvesin situations of social and economic deprivation with a lack of opportunities and limited option for positive development … the reality isthat their constrained circumstances may diminish their moral culpability": Ipeelee, at para. 73. [52] It is not necessary that the offender establish a "causal link" between these background factors and the index offence before theremedial impact of s. 718.2(

e) is brought to bear: Ipeelee, at para. 81. This is true even for "serious or violence offences": Ipeelee, atpara. 84. "Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide thenecessary context to enable a judge to determine an appropriate sentence": Ipeelee, at para. 83. [53] Sentencing judges have a positive duty to apply s. 718.2(

e) in all cases: Ipeelee, at para. 85. A failure to do so constitutes an errorthat justifies appellate intervention: Ipeelee, at para. 87. [61] With the above in mind, I acknowledge the historic mistreatment of Indigenous persons and how systemic and backgroundfactors have played a

part in Mr. Peeace’s offending and his moral culpability. I also acknowledge that the mistreatment of Indigenouspersons have generally and specifically impacted Mr. Peeace. I also appreciate the sentencing options that may be particularlyappropriate given Mr. Peeace’s circumstances. DISPOSITION [62] In my view, the public is best protected by imposing a sentence with the primary objectives being denunciation and deterrence,while giving Mr. Peeace an opportunity to focus on his rehabilitation. Of course, any sentence imposed must be proportionate to thegravity of Mr.

Peeace’s offences and to his reduced degree of responsibility. Aggravated Assault [63] After considering all of the factors and circumstances, I am of a view that Mr. Peeace’s offence and his circumstances are similarto the facts in Perrault. In this regard, both were relatively young, both experienced difficult childhoods, both have criminal records, andboth offences were unprovoked involving weapons. Distinguishing between them is, Mr. Peeace is Indigenous without rehabilitativestrides, whereas, Mr.

Perrault is not Indigenous but he had made rehabilitative strides. [64] With the above in mind, and considering the objectives of deterrence, denunciation and rehabilitation, I impose a 40 monthcustodial sentence. In my view, the sentence imposed reflects the gravity of the offence and Mr. Peeace’s culpability. Additionally, thesentence denounces and deters while giving Mr. Peeace access to Indigenous programs, thus, assisting in his rehabilitation and healing. [65] I have declined to impose the sentence suggested by counsel for Mr.

Peeace, because I am of the opinion that a three year jailsentence would not be proportionate to the seriousness of Mr. Peeace’s conduct and his level of responsibility. Significant in myconsideration is the conduct involved a coordinated forced entry into a home followed by an unprovoked machete attack. Firearms Offence [66] In considering an appropriate sentence and despite the pressing need for denunciation and deterrence, I recognize the sentence

imposed must be proportionate. From the cases presented I observe, in Kachuol , the offender did not have a criminal record and he was not Indigenous. In contrast, Mr. Peeace is Indigenous and he has a criminal record and he was bound by a prohibition orders. With this in mind, I impose a consecutive sentence of 30 months; however, from this amount Mr. Peeace will be credited with twenty-one months and one week, which represents his pre-sentence custodial time, therefore, he has a balance of eight months and three weeks remaining.

Totality [ 67 ] I have considered the totality of the sentences and, in my view, the cumulative sentences of 5 years and 10 months does not exceed Mr. Peeace’s overall culpability and is reflective of the seriousness of his conduct. I am also of the view that the cumulative sentences will permit Mr. Peeace to engage in a meaningful way with the available Indigenous programs thereby supporting in his rehabilitation and reintegration. ANCILORY ORDERS DNA [ 68 ] Pursuant to s. 487.051, I authorize the taking of a bodily substance from Mr. Peeace for the purpose of the national DNA databank.

Firearm Prohibition [ 69 ] Pursuant to s. 109(3) of the Code , Mr. Peeace is prohibited from possessing any firearm, a prohibited firearm, a restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for life. Victim Fine Surcharge [ 70 ] Mr. Peeace has been in custody for over a year. He does not have any assets. Accordingly, I conclude that the imposition of a victim fine surcharge would cause undue hardship and it is waived. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia