R. v. George, 2023 BCPC 189

Citation: R. v. George 2023 BCPC 189 Date: 20230724 File No: 76004-K-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BENNY AUSTIN GEORGE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: King, K. Counsel for the Defendant: Perrin, W. Place of Hearing: Prince George , B.C.

Date of Hearing: March 15, 2023 Date of Judgment: July 24, 2023 Introduction [ 1 ] Benny Austin George (“Benny George”) is before the court today for sentencing to one count of uttering threats to his former intimate partner, Ramona Angus, and one count of mischief by slashing the tire of a bicycle she was using. Ramona Angus and Benny George were intimate partners for approximately four years. They have no children together. By the summer of 2021, their relationship disintegrated. Benny George made threatening telephone calls to Ramona Angus on June 7, 2021, and July 28, 2021, which she recorded.

On September 8, 2021, Benny George held a birthday celebration for Ramona Angus’ teenage son. When Ramona Angus showed up at the celebration uninvited, Benny George demanded she leave, which she did on a borrowed bicycle. Benny George chased after her and when she stopped, he caught up to her and slashed one of the tires on the bicycle she was using. Issues [ 2 ] The sole issue before me is a determination of a fit and proper sentence for Benny George for the offence of uttering threats to kill Ramona Angus, and for the offence of mischief for slicing a tire of the bicycle she was using at the time.

Circumstances of the Offender including Indigenous status [ 3 ] Benny George’s personal circumstances are set out in the Pre-Sentence Report authored by Probation Officer Paul Weisbrodt, of Prince George Community Corrections. [ 4 ] Benny George is the middle child of eight children. He is 61 years old having been born on May 16, 1962, in Tachet. Although a member of the Lake Babine Nation, Benny George has lived in Prince George since 1993. He has a Grade 10 education and is a red seal carpenter. He works steadily for Yellowridge Construction, his employer of six years.

Benny George has a long history of employment in mining, silviculture , carpentry, and other labour intensive occupations. In a letter dated August 5, 2022, John Palmeter, Yellowridge Construction Ltd.’s site superintendent and project manager, writes: Benny has been working with us for the past 5 years as a very reliable, dependable, and hard-working skilled labourer on a couple of fairly large construction projects in the Prince George area. Throughout his time with us we have had no issues with Benny showing up to work every day that he is expected to be there.

We have started another large construction project in Prince George that Benny will be involved in right to the completion of the project, 2 years in total. We feel that due to his hard work and dedication Benny deserves the opportunity to remain working with Yellowridge for the foreseeable future. Benny has been a true asset to this company and continues to be and I feel it would be in the best interests of all the parties concerned to keep Benny George gainfully employed with Yellowridge Construction Ltd.

We are willing to assist and support Benny to the best of our ability as required. [ 5 ] Benny George suffered a chaotic and abusive childhood. His parents are deceased, as are six of his siblings. Benny George’s parents abused alcohol throughout his childhood and he suffers from with Fetal Alcohol Spectrum Disorder (“FASD”) as a result of his mother consuming alcohol while pregnant with him. Benny George says he was physically abused by both his parents. When he was between five and seven years old, he was sexually abused by a babysitter. [ 6 ] Benny George married Evelyn Alec in 1983.

Together they had three children. Their marriage ended in 1994, after Benny George assaulted her. He attributes the demise of their relationship to financial stress, his jealously, and his substance misuse. In 2014, Benny George entered into an intimate relationship with Darlene Field. This relationship ended in May 2015, when he assaulted her. In 2017, Benny George entered into an intimate relationship with Ramona Angus. This relationship ended in 2021, as a result of the Benny George’s violent offences, which form the substance of the charges now before the court.

Mental Illness [ 7 ] Benny George says he has been diagnosed with FASD. He says he receives a stipend from Persons with Disabilities because of his FASD diagnosis. He reports that apart from the FASD, he is otherwise healthy. He has not provided the Court with any medical records confirming this diagnosis. [ 8 ] On June 7, 2022, at the time Benny George entered his guilty pleas, Judge McDermick ordered: (

a) Prince George Community Corrections provide the court with a Pre-Sentence Report with a Gladue component; and (

b) the Forensic Psychiatric Services Commission (“FPSC”) undertake a full psychological/ psychiatric assessment (the “Assessment”) addressing Benny George’s insight into his history with substance misuse, intimate relationships, family, mental health, instability, and his ongoing risk factors to the protection of the public. [ 9 ] Although the Court requested the Assessment, the FPSC did not receive the referral from the Court Registry until September 7, 2022. In October 2022, the FPSC requested an extension of time to complete the Assessment to December 22, 2022. On December 2, 2022, Dr.

Marina Le, Registered Psychologist for the FPSC advised the court that Benny George missed his appointment with the FPSC scheduled for December 1, 2022, and the FPSC had insufficient collateral information to offer an informed opinion without his participation. The FPSC closed its file. Given the time that had lapsed between the offence date (September 8, 2021), and the charge date (September 28, 2021), and the sentencing date (March 15, 2023), the Crown and Defence asked the Court proceed with sentencing without the Assessment.

PO Weisbrodt, however, was able to access and reference two previous pre-sentence reports and two forensic psychiatric reports. Although these reports are dated, they are still helpful.

[ 10 ] The Defence submits that FASD has impaired Benny George’s intellectual decision-making, cognitive processing, communication, and self-regulation. As a child, Benny George struggled with school and required special assistance to reach as far as Grade 10. Ultimately, Benny George became a carpenter but it took him six or seven attempts before he passed the requisite tests to obtain his red seal certification. As a result of his FASD and traumatic childhood, Benny George became addicted to alcohol, which he eventually overcame 28 years ago.

Benny George’s difficulties with communication, self-expression, and self-regulation are ongoing. Criminal Record [ 11 ] Benny George has a Criminal Record that begins in 1983, when he was 20 years old. He has nine convictions, including three convictions for sexual assault (May 23, 1995, September 26, 1996, April 30, 2007), one conviction for assault causing bodily harm to his wife, Evelyn Alec (October 11, 1994), one conviction for assaulting his intimate partner, Darlene Field (September 21, 2016), and one conviction for break and entry and theft (June 8, 1983).

Benny George’s only conviction for breaching a court order was on September 21, 2016, for breaching his undertaking (s. 145(5.1)) of the Criminal Code . Circumstances of the Offences [ 12 ] On September 8, 2021, 7:57 p.m. Ramona Angus reported to the RCMP an incident with Benny George, her former boyfriend, which had occurred 45 minutes prior to her telephone call to the police. Less than an hour later, at 8:35 p.m., Cst. Graham Leonard Belak obtained an audio statement from Ramona Angus.

Ramona Angus said she had gone to Benny George’s residence at 107 McDermid Drive, Prince George, BC, to celebrate her son’s birthday. When she arrived, Benny George told Ramona Angus to leave and not come back. She left on a bicycle. Ramona Angus stopped at 2nd Avenue and Quince Street to queue up her music on her audio player. She heard footsteps and saw Benny George running towards her. Benny George caught up to Ramona Angus and slashed her bicycle tire with a sharp object, which she did not see, but believed it might have been a knife.

The bicycle belonged to Ramona Angus’ boyfriend, Peter Murdock. [ 13 ] Ramona Angus said Benny George threatened to kill her in the past, although she did not recall him doing so on September 8, 2021, the date of the mischief offence. Ramona Angus later provided the RCMP with some audio clips of threats she had recorded on her cell phone. She provided the police with four clips of audio recordings on her phone, two of which were particularly concerning.

In audio clip #3, recorded July 28, 2021, Benny George says, “I will be gone for three years; you would be gone forever.” Ramona Angus asks him if he could tell her what he meant by her “gone forever”. Benny George responds, “You’re fucking dead. How the fuck are you going to come alive when I stab you through the fucking heart is what I am saying.” He continued with more expletives. [ 14 ] Audio clip 4, also recorded on July 28, 2021, records Benny George saying, among other things, “If I find out that is what’s going to happen to you. You better fucking know it right now.

I told you already point blank I am not going to have you fucking someone else while you are still trying to be with me. No, I will put you away. I will put myself away for three years for that too.” Ramona Angus responds, “Not if it is pre-planned you would get more.” Benny George replied, “While it is up to you . . . fucking keep your legs closed where ever you go, if I find out, fucking watch out, killing you. Remember that. Benny’s going to kill you if Benny finds out.” [ 15 ] In the Pre-Sentence Report, Benny George acknowledged he uttered threats to Ramona Angus on July 28, 2021.

Benny George told PO Paul Weisbrodt, he was angry with Ramona Angus, as he believed she was having an affair with Peter Murdock, as well as six or seven other men. Benny George says he kicked Ramona Angus out of his home and disposed of all her belongings to dissuade her from returning. Nevertheless, Ramona Angus did return to his home uninvited, which made him very frustrated and angry.

Benny George told PO Weisbrodt he did not know what to do so he threatened her, hoping this would drive her away and she not return. [ 16 ] Benny George also acknowledged to PO Weisbrodt he slashed the tire of the bicycle Ramona Angus was riding on September 8, 2021. He did so because he was angry with Ramona Angus, because she showed up at his residence unannounced at the birthday dinner he was having with Ramona Angus’ son. Benny George ordered Ramona Angus to leave his house. As she was leaving, Ramona Angus sent him a text message that made him angry.

He chased her down and slashed the bicycle tire with a knife as a warning to her. He says he did not intend to harm Ramona Angus physically; he just did not want her to return into his life. The threat worked, because Ramona Angus has not bothered him since. [ 17 ] In sum, Benny George admits to both offences before the court. He acknowledges his mistreatment of Ramona Angus was born out of jealously. Benny George was suspicious that Ramona Angus was involved with other people, one of whom was Peter Murdock.

Victim Impact [ 18 ] Ramona Angus is a member of the Wet’suwet’en First Nations from Northwestern British Columbia. Ramona Angus provided the Court with a Victim Impact Statement filed June 7, 2022. She also granted an interview to PO Weisbrodt and attended the sentencing hearing on March 15, 2023. [ 19 ] Ramona Angus says she suffers enduring effects from the incidents giving rise to the charges now before the court. As a result of the September 8, 2021 offence, Ramona Angus fears people approaching her in a public place.

She told PO Weisbrodt the incident has caused her increased anxiety, depression, and suicidal thoughts. Ramona Angus reported she had to quit her job due to the trauma she has suffered as a result of these offences. She has been attending virtual counselling sessions since the offence and she has been prescribed medications for her mental health. Procedural History [ 20 ] These offences occurred on July 28, 2021, and September 8, 2021 in Prince George B.C. The Prince George RCMP arrested Benny George on September 9, 2021, and released him on an Undertaking that same day.

The Undertaking included the following terms: a. Benny George was to report to the Prince George Community Corrections on September 10, 2021, and thereafter as directed;

b. Benny George was prohibited from communicating, directly or indirectly with Ramona Angus; c. Benny George was prohibited from going to any place where Ramona Angus works or resides; and d.

Benny George was prohibited from possessing any firearms, cross-bows, prohibited weapons, restricted weapon, prohibited device,ammunition, prohibited ammunition, or explosive substance and to surrender any of these items in his possession and also anyauthorization, licence or registration certificate or other document enabling him to acquire or possess the items, to Constable Bebak at thePrince George RCMP Detachment before September 10, 2021. [21] Benny George was charged with the offences of uttering threats and mischief on September 28, 2021, under Information 76004-K-1.

His first appearance date was September 29, 2021, in Prince George Provincial Court. Benny George has been representedthroughout these proceedings by his legal counsel, Mr. W. Perrin. [22] On June 7, 2022, the first day of trial, Benny George pleaded guilty to these two offences before Judge McDermick. The mattercame before me for sentencing on March 15, 2023. At the conclusion of the sentencing hearing, I reserved my decision on sentence. Thefirst date the Crown Counsel, Defence Counsel and the Court were available for my decision was July 24, 2023.

These are my reasonsfor judgment. [23] At the sentencing hearing the Court received into evidence the following exhibits: Exhibit 1: JUSTIN Conviction List setting out Benny George’s Criminal Record as of September 27, 2021; Exhibit 2: RCMP CPIC Information-1 Criminal Record of Benny Austin George as of September 9, 2021; Exhibit 3: Victim Impact Statement of Ramona Angus filed June 7, 2022; Exhibit 4: Correspondence from Yellowridge Construction Ltd. with respect to Benny George’s employment with that company; and Exhibit 5: Pre-sentence Report of Probation Officer Paul Weisbrodt, of Prince George Community Corrections, which includes a reviewof previous presentence reports, forensic and psychiatric reports.

Primary Objectives of Sentence [24]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crime-prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [25]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the moral blameworthiness of the offender. The goal in sentencing is a fair, fit and principled sanction andproportionality is the organizing principle in reaching this goal: R. v. Parranto, 2021 SCC 46 (CanLII, para. 10). It is grounded inelemental notions of justice and fairness and indispensable to the public’s confidence in the justice system: R. v.

Safarzadeh-Markhali, 2016 SCC 14, at paras. 70-71; Lacasse, paras. 3-6. [26] Other important but secondary sentencing considerations are set out in s. 718.2, which state in relevant part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . (

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

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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. DETERMINING A PROPORTIONATE SENTENCE [27] In Parranto, the Supreme Court of Canada stated [citations omitted]: [113] In order to produce proportionate sentences, sentencing must be a “highly individualized exercise” . . . Sentencing judges mustdecide a profoundly contextual issue: “. . .

For this offence, committed by this offender, harming this victim, in this community, what isthe appropriate sanction under the Criminal Code?” . . . They must determine which objectives of sentencing merit greater weight andevaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case . . . [Emphasis in original] THE GRAVITY OF THE OFFENCE [28] In R. v.

Ellis, 2022 BCCA 278 , Justice DeWitt-Van Oosten explained what is meant by the “gravity of the offence”[Citations omitted]: [130] The assessment of gravity is focused on “the normative wrongfulness of the conduct and the harm posed or caused by the conduct”

. . . [131] The gravity of an offence is not focused on the circumstances of the offender, including their personal characteristics or aspects ofthe offender’s social context or background that may provide an explanatory context for the choice to commit the offence . . . . Thosefactors are relevant to an assessment of the offender’s personal responsibility or blameworthiness, which represents a different aspect ofthe proportionality analysis. [Emphasis in original.] [29] In R. v.

Sharma, 2022 SCC 39 , the Supreme Court of Canada stated (at paras. 4 and 105) that a maximum sentence foran offence is a reflection of, and a proxy for, its seriousness. In this case, the prosecutor has proceeded summarily. Benny George isconvicted of uttering threats contrary to s. 264.1(1)(

a) of the Criminal Code and mischief to property of a value under $5,000, contrary tos. 430(4) of the Criminal Code. Pursuant to s. 787(1) of the Criminal Code, the maximum penalty is two years less one-day jail for eachoffence.

POSITION OF THE PARTIES [30] The Crown seeks a 30 day jail sentence followed by 12 months’ probation; [31] The Defence seek: a. a suspended sentence with 18 months probation; or if not a suspended sentence, then b. a three month Conditional Sentence Order followed by a period of probation which will include a curfew but not house arrest;alternatively; c. a 14 to 30-day intermittent sentence behind bars followed by a period of probation; d.

The Probation Order is to include a prohibition against Benny George contacting Ramona Angus, or possessing any weapons orknives; e. restitution to Peter Murdock for the damaged bike tire ($50) to be included in the Probation Order; f. counselling; and g. if a non-custodial sentence is granted, then 15 hours community work service. Aggravating and Mitigating Factors and Collateral Consequence [32] Individualization in sentencing requires me to consider all aggravating and mitigating circumstances, and the collateralconsequences.

An aggravating factor, either statutorily or judicially mandated, will induce a court to impose a longer sentence than whatotherwise may be imposed. A mitigating factor will reduce the sentence that might otherwise be imposed. The absence of an aggravatingfactor does not equate to a mitigating factor or vice versa: R. v. Scofield, 2019 BCCA 3, at para. 36; R. v. Friesen, 2020 SCC 9, para. 150. The Crown bears the burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bearsthe burden of proving disputed mitigating factors on a balance of probabilities: R. v.

Dreger, 2014 BCCA 54, para. 45. Aggravating factors [33] Roxanne Angus is Benny George’s former intimate partner who suffered significant distress as a result of Benny George’soffences. Sections 718.2(a)(ii) and (iii.1) of the Criminal Code expressly characterizes the following circumstances as aggravating: 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 offenceor the offender, and, without limiting the generality of the foregoing, . . . (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation [34] Benny George has a very serious criminal record, which includes a number of historical violence against females, including threesexual assaults.

The sexual assaults are dated, having occurred in 1995, 1996 and 2007. His last violent offence against a female was onMay 28, 2015 - an assault on Darlene Field, Benny George’s former intimate partner. Additional Considerations [35] Although not aggravating per se, s. 718.04 of the Criminal Code does set out certain circumstances that give primaryconsideration to the objectives of denunciation and deterrence: Objectives — offence against vulnerable person

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personalcircumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectivesof denunciation and deterrence of the conduct that forms the basis of the offence.

Additional consideration — increased vulnerability 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider theincreased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. Authorities on intimate partner violence [36] Intimate partner violence remains a pervasive problem in Canada, and predominantly affects women: R. v. Begley, 2019 BCCA331 , para. 10; R. v. Somers, 2021 BCCA 205, para. 67. [37] In R. v.

M.S.G., 2021 BCPC 157 , Judge Boblin considered the range of sentence in cases involving intimate partnerviolence. Citing R. v. Bullewell, Judge Boblin concluded the range of sentence for uttering threats is three to six months jail. In R. vVaillant, 2020 BCSC 1137 , Justice Mayer noted (at para. 74) that in R. v.

Hiscock, 2002 BCCA 647, the BC Court of Appealcommented that the offence of uttering threats has generally attracted light sentences in B.C., but did not provide a particular range ofsentences. [38] Many of the authorities on sentencing an offender for the offence of uttering threats in a domestic context also involve additionalconvictions for assault (s. 266(

a) CC) and/or unlawful confinement (s. 279(2) CC) or other circumstances far more serious than those inthe case before me: see for example, R. v. D.W.S., 2020 BCPC 289 , R. v. Paradis, 2016 BCPC 354 , R. v. Fagg, 2015BCSC 1694, R. v. Snelgrove, 2005 BCCA 51 . Neutral Factors [39] Benny George has pleaded guilty to these offences; he admitted his wrongdoing, and had never denied the impugned conduct.Still, Benny George has not demonstrated remorse for his actions. An offender’s genuine expression of remorse can be a significantmitigating factor in sentencing. However, a lack of remorse is not aggravating: R. v.

Taylor, 2021 BCCA 283 , paras. 20-23.Nevertheless, the court can use a lack of remorse in assessing an offender’s rehabilitative prospects and continuing risk to the public: R.v. May, 2018 BCCA 391 , at para. 35. citing R. v. Montgomery, 2018 BCCA 27 at para.11; R. v. Alderman, 2017 BCCA 26atpara. 15; R. v. Athey, 2017 BCCA 350at paras. 37-38; R. v. Purdy, 2012 BCCA 272at paras. 23-26.

Where an offender demonstrates a“shocking lack of remorse” it is open to the sentencing judge to conclude an appropriate sentence ought to emphasize specific deterrence:Montgomery, at para.11. [40] In this case, I cannot dismiss the possibility that Benny George’s lack of insight and empathy may be attributable to factorsbeyond his control, including his traumatic childhood, FASD, and cultural disconnection from his Indigenous community. Mitigating Factors [41] Benny George pleaded guilty to the offences before the court.

As a rule, a guilty plea is mitigating as it can bring finality to thecriminal proceeding, spare judicial resources, and reduce the trauma and inconvenience to the witnesses. Benny George’s guilty plea is amitigating factor, albeit somewhat attenuated by the fact that it was entered on the first day of trial. [42] Other mitigating factors in Benny George’s favour is his commendable work history. Gladue Factors [43] Benny George is an Indigenous offender and the principles set out in s. 718.2(

e) of the Criminal Code are of particularimportance. In R. v. Gladue, , at para. 33, and R. v. Ipeelee, 2012 SCC 13 (at para. 59), the Supreme Court of Canadaheld that s. 718.2(

e) is remedial and is intended to deal with the continuing crisis of over-representation of Indigenous offenders in theCanadian criminal justice system. In summarizing the principles from Gladue, LeBel J., for the majority in Ipeelee stated: [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). [44] Benny George has no connection with the Lake Babine Nation.

He complained to PO Weisbrodt that his Indigenous Band doesnot help its own people who reside off the reserve. Benny George does not participate in any traditions or cultural activities relating tohis Indigenous ancestry. His childhood in Tachet was one of extreme abuse. His home was ravaged with family violence and alcoholmisuse. Benny George was born with FASD as a result of his mother’s consumption of alcohol while pregnant. He grew up to usealcohol to excess as well as other drugs.

Benny George has no plans to return to Tachet and intends to remain in Prince George, his homefor the past 30 years. [45] In R. v. Kehoe, 2023 BCCA 2, Justice Marchand discusses the role of colonialism in disconnection of Indigenous people from

their Indigenous heritage: [55] As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnectedfrom their ancestral communities, cultures, and associated positive social structures. This disconnection has contributed to the social andeconomic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system. [56] Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policiesthat Gladue and Ipeelee seek to address.

Accordingly, the Crown’s reasoning that Gladue principles should play a very limited role inthis case because Mr. Kehoe was disconnected from his Indigenous culture, community and supports subverts the remedial purpose of s.718.2(

e) of the Code and penalizes Mr. Kehoe for the success of Canada’s destructive policies. [57] Second, when determining whether and how Gladue principles applied to Mr. Kehoe, the issue was never whether he wasdisconnected from his Métis community, culture and supports. Rather, the issues were: (1) the role Canada’s colonial history and post-colonial assimilationist policies played in causing that disconnection; and (2) the role that disconnection played in his coming before thecourt. [46] A number of courts have had to grapple with the tension between s. 718.2(

e) and s. 718.04 of the Criminal Code: R. v.West, 2020 BCSC 35, R. v C.C.C, 2021 BCSC 599 , R. v. Daychief, 2023 BCPC 62 .

Section 718.2(

e) of the CriminalCode mandates the sentencing judge to consider all available sanctions for an Indigenous offender, other than imprisonment, that arereasonable in the circumstances. As set out above, s. 718.04 of the Criminal Code directs the sentencing judge to give primaryconsideration to the principles of denunciation and deterrence when the victim is Indigenous. [47] In C.C.C, Justice Marchand comments in para. 2: [2] These are amongst the most painful of reasons for judgment a sentencing judge can be asked to deliver. Two crises that arise from thesame historical factors pull in opposite directions.

On the one hand, the circumstances call on me to denounce and deter the sexualvictimization of an extremely vulnerable Indigenous girl. On the other hand, I do not wish to exacerbate the grotesquely disproportionaterate of incarceration of Indigenous people. There is no easy solution. [48] Justice Marchand goes on to state in C.C.C.: [30] Sections 718.04 and 718.2(

e) may seem to be somewhat at cross purposes in the circumstances of this case. Where vulnerablevictims like the complainant are Indigenous and female, s. 718.04 directs the court to give primary consideration to the objectives ofdenunciation and deterrence. At the same time, where an offender is Indigenous, like C.C.C., s. 718.2(

e) and related authorities direct thecourt to, where appropriate, take a more rehabilitative and restorative approach to sentencing. [31] In its powerful final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls documented a crisis ofviolence, including sexual violence, against Indigenous women, girls, and 2SLGBTQQIA people. The Inquiry identified four “pathways”that have resulted in disproportionate rates of oppression and violence towards Indigenous women, girls, and gender-diverse people.

Thefour pathways identified by the Inquiry are: • Historical multigenerational and intergenerational trauma; • Social and economic marginalization; • Maintaining the status quo and institutional lack of will; and • Ignoring the agency and expertise of Indigenous women and girls and 2SLGBTQQIA people. [32] The Inquiry concluded that: …the more these … pathways intersect in an Indigenous person's life, the more likely they are to experience violence … [33] One of my takeaways from the Inquiry's work is that Canada's colonial history and destructive assimilationist policies, as well asracism and sexism, have embedded and normalized violence into the everyday lives of Indigenous women, girls, and gender-diversepeople. [49] Justice Marchand’s comments in C.C.C. were in the context of a sexual assault, however, they are apropos of cases involvingintimate partner violence: R. c.

G.L., 2021 QCCQ 6542 . [50] I accept that Benny George like many Indigenous offenders who come before this Court has been disproportionately affected byCanada’s notorious history of colonization, displacement, assimilationist policies, which include residential schools, and resultingintergenerational trauma. I am satisfied that those factors, both systemic within society and specific to Benny George have played a rolein his criminal behaviour and ought to be taken into account to arrive at a proportionate sentence. Fetal Alcohol Spectrum Disorder (FASD) [51] Benny George claims he has been diagnosed with FASD.

PO Weisbrodt’s Pre-Sentence Report lends some support to thisassertion. The Courts have recognized FASD as a factor that affects an offender’s degree of responsibility so as to reduce the severity ofthe sentence. In R. v. Friesen, 2016 MBCA 50, the Manitoba Court of Appeal reduced a sentence imposed for manslaughter because thesentencing judge had failed to consider the young Indigenous offender had been diagnosed with partial FASD. Monnin J.A. stated: [26] In

summary, an offender’s moral blameworthiness may be reduced if he suffers from an FASD related diagnosis and there is aconnection between the condition and the offence for which he stands charged. The sentencing judge must have evidence of thediagnosis and its impact on accused in order to draw the nexus between that diagnosis and the accused conduct relating to the offences.

[52] Friesen was cited with approval by in R. v. Badhesa, 2019 BCCA 70, wherein Justice Dixon of the BC Court of Appeal states inrelevant [citations omitted]: [40] . . . The criminal law views individuals as autonomous and rational beings and seeks to impose criminal liability solely on those whoare responsible for the state they were in when an offence is committed . . . Similar concerns animate the determination of a fit sentence.. . Impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted from ordinary, fullyaccountable offenders for sentencing purposes. . .

Where an offender is found to be criminally responsible, but suffering from a seriousmental illness or disability, a more lenient disposition than would otherwise be called for may well be appropriate to reflect a diminishedlevel of criminal responsibility . . . . . . [42] When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reducedbecause the offender’s moral culpability is attenuated.

In these circumstances, general deterrence is a less weighty consideration becausea mentally ill offender is not an appropriate medium for making an example to others. . . Nor does specific deterrence or severepunishment play a significant role in the determination of a fit sentence.

The former is meaningless when an offender is out of touch withreality and the latter may be disproportionate to the offender’s degree of responsibility . . . . . . [44] When assessing a fit sentence, the judge should attribute a degree of moral culpability to the offender commensurate with themagnitude of the mental illness and its overall role in the commission of the offence . . . and punishment should be given less weight andtreatment and public protection concerns should be increased . . .

This decreased emphasis on deterrence and punishment is consistentwith the proportionality principle, which is the sine qua non of a just sanction . . . [53] When assessing Benny George’s personal circumstances I must consider whether the cognitive deficits flowing from his FASDreduces his moral culpability.

The degree to which Benny George’s sentence is mitigated depends upon the magnitude of the deficits.The greater the mitigating effect, the more the objectives of denunciation and deterrence are attenuated: Badhesa, at para. 44, citing: R vRamsay, 2012 ABCA 257. [54] I accept as true, Benny George’s claim he had been diagnosed with FASD. Nevertheless, I have a dearth of evidence as to thenature and severity of this disability. I note the FPSC closed its file because it had insufficient collateral information to offer an informedopinion without Benny George’s participation.

I do not see in the circumstances how this court can make an informed decision about therelationship, if any, between Benny George’s FASD and his criminal behaviour. In R v McDonald, 2021 ABCA 262 , theAlberta Court of Appeal states: [24] Similarly, no detail was provided regarding Mr. McDonald’s FASD, beyond that he had, at some point, been so diagnosed. Thecondition is permanent and typically manifests through poor memory, impulsivity, lack of control and the inability to fully appreciate theconsequences of one’s actions. The severity of impairment can vary greatly.

In R v Ramsay, 2012 ABCA 257at para 16, this Courtexplained that an offender’s FASD diagnosis carries important sentencing implications: Crafting a fit sentence for an offender with the cognitive deficits associated with FASD presents at least two identifiable challenges:accurately assessing the moral blameworthiness of the offender in light of the adverse cognitive effects of FASD; and balancingprotection of the public against the feasibility of reintegrating the offender into the community through a structured program underadequate supervision.

Medical reports assessing the prospect of the offender’s rehabilitation and reintegration into the communityare essential to the task and must be carefully analyzed. [Emphasis Added] [55] Demanding an accused person in Benny George’s circumstance provide updated detailed psychiatric reports presupposes that hehas ready access to those medical or psychiatric resources. I accept that is not the case for Benny George, nor for any number of peoplewho live in the North who require such expertise.

In the circumstances, I am prepared to proceed with sentencing with what informationI have from Benny George and PO Weisbrodt. Proportional sentence [56] Denunciation, deterrence and public protection have long been recognized as the overarching sentencing objectives in casesinvolving intimate partner violence: R v Lavalee, (SCC).

Section 718.04 mandates the sentencing judge to give primaryconsideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerablebecause of personal circumstances – including because the person is Aboriginal and female.” [57] Rehabilitation in this case is not a significant factor. Benny George is 61 years. He been involved in the criminal justice systemsince 1983. He has had both custodial and community-based sentences.

While incarcerated, Benny George has engaged in a host ofcounselling and treatment programs, for sexual offending and domestic violence. In his April 10, 2017, Forensic Assessment forTreatment Report, Dr. Evan Lopes, states: It appears that after all this programming and counselling, Mr. George still shows no level of culpability or assumption of responsibilityin his crimes. He also shows no level of remorse for his victims.

Despite his straight-out refusal to participate in the program, it is notlikely that making him go through the program again will increase his extremely poor level of understanding and insight. [58] In his Pre-Sentence Report, PO Weisbrodt, states: Factors which may be considered to contribute to current and future offending behaviours are: childhood abuse issues (physical/ sexualabuse), grieving issues, poor emotional connection with women, impulsivity, alcohol use in past offences, attitudes that support abusive

behaviour, lack of victim empathy, hostility towards females, and cognitive disabilities possibly due to FAS. [ 59 ] Although Benny George’s prospects for rehabilitation are dismal, I must nevertheless consider the appropriateness of a community-based sentence. I am mindful of Justice Marchand comments in West : [53] While it may be challenging to strike the correct balance between denunciation, deterrence, restoration, and rehabilitation in cases involving Indigenous victims and Indigenous offenders, it is critical to victims, offenders, and the community to do so.

As part of the exercise, I note that community-based sentences that focus on rehabilitation can also address denunciation and deterrence: R. v. Schneider , 2019 BCCA 310 at para. 24 . [ 60 ] But for Benny George’s significant Gladue factors, I would accede to the Crown’s request for a custodial sentence. I am heartened by PO Weisbrodt’s comments in the Pre-Sentence Report that Benny George appears to have been generally compliant with community supervision orders from 1983 to 2017. Disposition [ 61 ] Benny George has been under community supervision with respect to this matter for almost two years.

I am unaware of any allegation Benny George has breached the conditions of his release. I find that Benny George’s incarceration behind bars is not required to manage his risk to public safety generally or to Ramona Angus specifically. Upon considering the various factors that weigh in favour of and against a custodial sentence, I find that a three-month conditional sentence followed by 12 months’ probation is a proportional sentence.

Sentence [ 62 ] Benny Austin George: under Count 1 of Information 76004-K-1, you have been charged with and pled guilty to and convicted of the offence that on July 28, 2021, at or near Prince George, British Columbia, you did knowingly utter or convey a threat to Ramona Angus to cause death or bodily harm to Ramona Angus, contrary to s. 264.1(1) (

a) of the Criminal Code . I am sentencing you to three months’ incarceration (90 days) in the community followed by 12 months’ probation. [ 63 ] Benny Austin George: under Count 2 of Information 76004-K-1, you have been charged with and pled guilty to and convicted of the offence that on September 8, 2021, at or near Prince George, British Columbia, you did commit mischief by wilfully damaging a bicycle tire, of a value not in excess of five thousand ($5,000) dollars, the property of Peter Murdock, contrary to Section 430(4) of the Criminal Code .

I am sentencing you to three months’ incarceration in the community followed by 12 months’ probation. [ 64 ] The sentences I impose on Counts 1 and 2 of Information 76004-K-1 are to be served concurrently each with the other. Terms of the Conditional Sentence Order 3000-1 You must comply with a conditional sentence order for a term of three months (90 days). The conditions are: a. You must keep the peace and be of good behaviour. b. You must appear before the court when required to do so by the court. c.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. d. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. 3002 You must have no contact or communication directly or indirectly with Ramona Angus. 3005-1 You must not go to or be within 50 metres of any place where Ramona Angus lives, works, attends school, worships, or happens to be.

If you see her, you must leave her presence immediately without any words or gestures. 3101 You must report in person to a conditional sentence supervisor at Prince George Community Corrections, at 101 – 250 George Street, Prince George, BC, V2L 5S2, 250.614.2678 / 1.888.994.8444, by 3:00 PM today, June 24, 2023, and after that, you must report as directed by your conditional sentence supervisor. 3201 When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without the prior written permission from your conditional sentence supervisor. 3209 For the entirety of your Conditional Sentence Order, you must obey house arrest by being inside the place where you live and regularly sleep 24 hours a day, every day. The exceptions are: a. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for reasonable purposes. b. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency.

You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor. c. You are going directly to, or returning directly from, your place of lawful employment. If asked, you must provide your conditional sentence supervisor with the details of your location and hours of employment.

d. Between the hours of 1 p.m. to 3 p.m. every Tuesday, Thursday and Saturday, in order to attend your personal business. e. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. f. If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. g.

If a peace officer finds you outside the place where you are living during the curfew or house arrest hours and requests to see the permission, you must show it to the officer. 3307 You must not enter into or continue any dating, common-law relationship, or marriage with any person until you have identified to your conditional sentence supervisor the person with whom you are in, or propose to enter, a relationship, and your conditional sentence supervisor has informed that person of your convictions, this order and your criminal record . 3400 You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription. 3501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. 3509 You must complete 15 hours of community work under the direction of your conditional sentence supervisor.

Your community work service must be completed by October 7, 2023. 3514 You must pay restitution in the amount of $50 to the clerk of the court for the benefit of Peter Murdock. Your restitution must be paid by October 7, 2023. 3610 You must not possess directly or indirectly any weapon as defined by the Criminal Code . 3616 You must not possess any knives, or axes, or any other sharp bladed instrument used, designed to be used, or intended to be used to cut things. The exceptions are: a. You can possess a knife when preparing and eating food. b.

For the purposes of lawful employment, while at or going directly to and from your place of lawful employment. If asked, you must provide your conditional sentence supervisor with the details of your location and hours of employment. c. With the prior written permission of your conditional sentence supervisor. If you are given permission, you must carry it with you in paper or electronic format at all times when you possess any of these items outside the place where you are living. d. If a peace officer finds you in possession of these items and requests to see the permission, you must show it to the officer.

Probation Order 2000-1 You must comply with a probation order for a term of 12 months. The conditions are: a. You must keep the peace and be of good behaviour. b. You must appear before the court when required to do so by the court. c.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. 2002 You must have no contact or communication directly or indirectly with Ramona Angus. 2005-1 You must not go to or be within 50 metres of any place where Ramona Angus lives, works, attends school, worships, or happens to be.

If you see her, you must leave her presence immediately without any words or gestures. 2104 You must report in person to a probation officer at 101 – 250 George Street, Prince George, BC, V2L 5S2, 250.614.2678 / 1.888.994.8444, within two business days after the completion of your conditional sentence order, unless you have obtained before the completion of your conditional sentence, written permission from a probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your probation officer. 2201 When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without the prior written permission from probation officer. 2307 You must not enter into or continue any dating, common-law relationship, or marriage with any person until you have identified to your probation officer the person with whom you are in, or propose to enter, a relationship, and your probation officer has informed that person of your convictions, this order and your criminal record . 3501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. 3610 You must not possess directly or indirectly any weapon as defined by the Criminal Code .

3616 You must not possess any knives, or axes, or any other sharp bladed instrument used, designed to be used, or intended to be used to cut things. The exceptions are: a. You can possess a knife when preparing and eating food. b. For the purposes of lawful employment, while at or going directly to and from your place of lawful employment. If asked, you must provide your probation officer with the details of your location and hours of employment. c. With the prior written permission of your probation officer.

If you are given permission, you must carry it with you in paper or electronic format at all times when you possess any of these items outside the place where you are living. d. If a peace officer finds you in possession of these items and requests to see the permission, you must show it to the officer. [ 65 ] There is a victim fine surcharge associated with your two convictions. You must pay a victim surcharge in the amount $100 for each conviction (for a total of $200) to the Clerk of the Court by January 24, 2024. _____________________________ The Honourable Judge J.T.

Doulis Provincial Court of British Columbia