R v Mann, 2023 MBPC 71

CITATION: R v Mann , 2023 MBPC 71 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) A. Millo and S. Sisson for the Crown – and – ) ) Mitchell Aaron Mann (Accused) ) ) Z. Kinahan for the Accused ) ) ) ) Reasons for Decision: December 14, 2023 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] This is about a sentencing decision. A young man took a loaded, sawed-off rifle, with fentanyl in his pocket, and over $1,000 worth of cocaine and its packaging materials in his backpack and went to his girlfriend’s house, where he was not supposed to be.

He got in a fight with his girlfriend, accused her of cheating, threw things around the house and police were called. There were five children in the house, between the ages of 1 and 16. He had three outstanding warrants for his arrest at the time. He was on 7-year and 10-year prohibition orders to have no weapons in his possession. He was on a release order from the court to have no contact with his girlfriend and to have no weapons. He was 25 years old when he did this.

He is a young Ojibway man from Sagkeeng First Nations, whose family has been displaced from each other, their lands, language, and culture for several generations, resulting in family violence, drug and alcohol addiction, premature and violent deaths – severe traumas associated with the legacy of colonialism. The Crown is seeking a total sentence of five years and three months in the penitentiary.

Defence agrees that the sentence must be denunciatory, but says there is some hope for rehabilitation and that the accused wants to avoid the penitentiary – his brothers were in rival gangs and one of them has been murdered. He will be targeted by the gangs in the penitentiary. Defence is seeking a four-year jail sentence, two years of which have been served, and a lengthy probation order. The sentences being sought are of a similar length. [ 2 ] Mr.

Mann pleaded guilty to possession of a loaded, prohibited firearm contrary to s. 95 of the Criminal Code , violating a weapons prohibition order contrary to s. 117 of the Criminal Code , possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ) and violating his release order when he left the Behavioural Health Foundation (BHF), which is a residential drug treatment facility. [ 3 ] Mr. Mann was 25 years old when he committed these offences. He is now 28 years old. [ 4 ] On the morning of April 5, 2021, Mr.

Mann went to the home of a woman with whom he had been in an on-and-off relationship and with whom he shared a young child. At the time, there were five children in the house, ages 1, 5, 8, 10 and 16 years of age. He was causing a disturbance, and the police were called. They arrived to see the house in disarray and Mr. Mann just leaving. He told police he had a knife. He was carrying a backpack, which he told police contained only his clothes. It contained a loaded, sawed-off .22 calibre rifle. It was loaded with five rounds of ammunition and he had another three rounds in his pocket.

He also had a scale contaminated by drugs, drug packaging materials, 17 grams of cocaine, and .3 grams of fentanyl in his pocket. [ 5 ] As for the breach of his undertaking on these charges, he obtained a release to BHF on February 2, 2023 and left one day later on February 3, 2023. [ 6 ] This is a tough case. Clearly the offences are very serious, with several aggravating features.

But the accused’s moral culpability is attenuated by the reality of carrying five generations of trauma, and there is some hope for restoration. [ 7 ] A tough sentence must be imposed, with a restorative aspect. [ 8 ] I have relied heavily on the framework for analysis from a previous decision of mine involving the sentencing of an Indigenous offender who committed serious offences, R v Harper , 2021 MBPC 47 .

SENTENCING: ITS PURPOSE, GUIDING PRINCIPLES AND OBJECTIVES [9] The fundamental purpose of sentencing as set out in Criminal Code is “to protect society and to contribute, along with crimeprevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society” (at s. 718). The fundamentalpurpose of sentencing under the CDSA is similar, save for one important difference.

Section 10 of the CDSA includes in its fundamentalpurpose encouraging rehabilitation, and in appropriate circumstances, treatment, as follows: Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part is tocontribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances. [10] The case of R v Parranto, 2021 SCC 46, involved the sentencing of two offenders engaged in the wholesale trafficking offentanyl. Wholesale trafficking in that deadly substance tops the sentencing charts in Canada, with denunciation and deterrence the mainobjectives.

However, the Supreme Court majority emphasized that even in cases like that, other sentencing objectives must be accountedfor: When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives,including rehabilitation and restraint. Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courtsconsider restorative justice principles and to address the problem of over-incarceration in Canada (Gladue, at para. 57; Proulx, atparas. 16-20).

Sentencing judges have discretion over which objectives to prioritize (Nasogaluak, at para. 43; Lacasse, at para. 54) andmay choose to weigh rehabilitation and other objectives more heavily than "built-in" objectives like denunciation and deterrence.Appellate courts should not lose sight of these principles -- nor the deferential standard of review -- when reviewing sentences that departfrom a starting point or range. (At para 45; emphasis added.) [11] The Supreme Court held in R v Nasogaluak, 2010 SCC 6, that no one sentencing objective trumps the others, and thatsentencing judges must determine which objective or objectives should have the greatest weight (at para 43): The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v.

L. (T.P.), (SCC),[1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objectivetrumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given theparticulars of the case. [12] The Supreme Court has emphasized this point in all its jurisprudence. Even when the offences are extremely serious, involvingguns, drugs and even child abuse, consideration must be given to sentencing objectives other than denunciation and deterrence.

In R vFriesen, 2020 SCC 9, Chief Justice Wagner and Justice Rowe stated: However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion toaccord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fitsentence, in accordance with the overall principle of proportionality (see R. c. Bergeron, 2013 QCCA 7 (C.A.

Que.), at para. 37). [At para 104; emphasis added.] (And see R v Bertrand Marchand, 2023 SCC 26 at para 28.) [13] The overarching principle in sentencing is that the sentence is proportional to the seriousness of the offence and the moralculpability of the offender. Because Mr. Mann is an Indigenous man, the principles enunciated by the Supreme Court of Canada in R vGladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13 and affirmed in its subsequent jurisprudence, arecritical to the analysis in this case.

SENTENCING INDIGENOUS PEOPLE [14] Criminal Code s. 718.2(e) “creates a judicial duty to give its remedial purpose real force” (Gladue at para 34; emphasisadded). [15]

Section 718.2(

e) was enacted to change the way in which Indigenous people are sentenced, to “reduce the tragicoverrepresentation of aboriginal people in prisons” (Gladue at para 87). It is only by taking into consideration the unique circumstancesof Indigenous people, that is, by taking into account their difference, that they can be treated fairly in the criminal justice system. [16] Sentencing judges are reminded that: [I]t must in every case be recalled that the direction to consider these unique circumstances flows from the staggering injustice currentlyexperienced by aboriginal peoples with the criminal justice system.

( Gladue at para 88 ) [ 17 ] In the Gladue case, counsel for Mr. Gladue expressed their fear that the

section might come to be interpreted and applied in a manner that would have no real effect upon the day-to-day practise of sentencing Indigenous people in Canada. Justices Cory and Iacobucci stated that this was unfortunately a reasonable fear, given the “tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system” ( Gladue at para 34 ).

But they stated that the subsection creates a judicial duty to give its remedial purpose real force. [ 18 ] To the extent that the Crown has argued that when the Court is sentencing serious offences engaging the primary objectives of denunciation and deterrence, the circumstances of the offender are less important, I note that the offence in Gladue was manslaughter, and Mr. Ipeelee was a long-term offender (LTO). Mr. Ipeelee had been placed on a Long Term Sentence Order (LTSO) after committing two sexual assaults, two assaults causing bodily harm and an aggravated assault.

He suffered from no mental illnesses and had average to above-average intellectual ability, but had been diagnosed with antisocial personality disorder and severe alcohol abuse disorder. His crimes were marked by extreme violence; the sentencing court described “a consistent pattern of Mr. Ipeelee administering gratuitous violence against vulnerable, helpless people while he is in a state of intoxication”. ( Ipeelee at para 10, citing R v Ipeelee , 2001 NWTSC 33 at para 34 ).

His LTSO had been suspended on four occasions; the breach before the Supreme Court of Canada involved him riding a bicycle erratically while intoxicated in downtown Kingston, with two bottles of alcohol in his pocket. He was originally sentenced to three years for the breach because alcohol was involved in all his previous offences and he would become violent when abusing alcohol and he posed a significant risk to offend sexually. However, taking into account the principles of sentencing for LTSO as well as the circumstances of Mr.

Ipeelee as an Indigenous person, the Supreme Court substituted a sentence of one year. [ 19 ] The reason that subsection 718.2(

e) specifically referred to Indigenous offenders was because of the “acute problem” of the disproportionate number of Indigenous offenders in prison in Canada ( see Gladue at para 50 ). In committee hearings for the Bill enacting s. 718.2 (

e) in 1994, Justice Minister Rock referred to the Manitoba Aboriginal Justice Inquiry (Commissioners A.C. Hamilton and C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba , vol. I, The Justice System and Aboriginal People (1991)) which found that although Indigenous persons made up 12 percent of the population of Manitoba, they comprised over 50 percent of prison inmates.

In Ipeelee , Justice LeBel cited the report itself, noting the rising incarceration rates of Indigenous people “from 22 percent in 1965 to 33 percent in 1984, and up to 46 percent” in 1989 (at para 57). [ 20 ] By 2012 when the Supreme Court decided Ipeelee , the situation for Indigenous offenders had worsened. Between 1996 and 2001, while non-Indigenous admissions to custody declined by 22 percent, the incarceration rate for Indigenous offenders increased by between 3 and 4 percent nationally.

As Professor Rudin is quoted asking the Court in Ipeelee : “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?” (at para 62, citing J. Rudin, “Addressing Aboriginal Overrepresentation Post- Gladue : A Realistic Assessment of How Social Change Occurs” (2009), 54 Crim. L.Q. 447, at p 452). [ 21 ] Unfortunately, the situation has become more critical since Ipeelee .

In the five-to-four decision of R v Sharma , 2022 SCC 39 , Justice Karakatsanis, writing the dissenting judgment, outlined the history of incarceration rates for Indigenous people in Canada, the 1996 sentencing amendments, and the application and direction from the Supreme Court in Gladue and Ipeelee ( see Sharma at paras 114 – 138 ). There are a few newer statistics and phenomena worth noting.

In Manitoba and Saskatchewan, admissions of Indigenous peoples into federal custody reached 75 percent. “Incredibly, Canada’s Indigenous inmate population grew by nearly 43 percent between 2009 and 2018 even as the sirens of overrepresentation continued to sound ever louder” ( Sharma at para 124 , citing the Office of the Correctional Investigator of Canada (OCI), Annual Report 2017-2018 (2018), at p 61). [ 22 ] The tragedy does not end with the number of incarcerated Indigenous people in Manitoba, but with incarceration’s “peculiarly devastating impact upon Canada’s aboriginal peoples” ( Gladue at para 51 ).

Quoting at length M. Jackson’s

article “Locking Up Natives in Canada” (1988-89), 23 U.B.C. L. Rev. 215, the Supreme Court in Gladue adopted the statement that prison has become for many young Indigenous people what residential schools were in the past (see para 60). [ 23 ] This point was made again in the Supreme Court more recently in Sharma at paragraph 126 : Inside prisons, Indigenous offenders also experience some of incarceration’s harshest effects.

They are more likely than their peers to “receive higher security classifications, to spend more time in segregation, to serve more of their sentence behind bars before first release, to be under-represented in community supervision populations, and to return to prison on revocation of parole” ( Ewert , at para. 60). [ 24 ] The Supreme Court’s direction to sentencing judges could not have been more clear in Gladue (at paras 64 and 65 ): These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.

The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2 (e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. . . . Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime .

(Emphasis added.) [ 25 ] The requirement of judges to address these problems was reiterated in Ipeelee (at para 68):

Section 718.2(

e) is therefore properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ” ( Gladue , at para. 64 (emphasis added)). Applying the provision does not amount to “hijacking the sentencing process in the pursuit of other goals” (Stenning and Roberts, at p. 160).

The purpose of sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality. Just sanctions are those that do not operate in a discriminatory manner.

Parliament, in enacting s. 718.2 ( e ), evidently concluded that nothing short of a specific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly. (Emphasis in original.) [ 26 ] Ipeelee starts from the frank and grim baseline that the disproportionate number of Indigenous people in jails and prisons stems in part from the fact that they commit more crimes and that they are victims of a discriminatory justice system.

As to the former, the Supreme Court recognized that the levels of criminality among Indigenous people “are intimately tied to the legacy of colonialism” ( Ipeelee at para 77). But, the Supreme Court held that addressing these matters does not lie beyond the purview of sentencing (see para 65). The Court directed that sentencing judges can address these matters in two ways. [ 27 ] First, sentencing judges can endeavour to reduce crime rates by Indigenous people by imposing sentences that effectively deter criminality and rehabilitate offenders.

Where the sentencing practises do not further those objectives, “those practices must change” ( Ipeelee at para 66). Secondly, sentencing judges must beware of inadvertently incarcerating persons who are unemployed, poor, transient, poorly educated and drug-addicted, which are systemic problems experienced by Indigenous peoples (see para 67). [ 28 ] Ipeelee is a blueprint for sentencing Indigenous offenders.

The analytical work takes place within the overarching principle in Canadian sentencing, proportionality , that is, that a sentence must be proportional to the seriousness of the offence and the moral culpability of the offender in committing the offence. [ 29 ] What follows is a discussion of proportionality generally and within the context of sentencing this young, Indigenous man.

PROPORTIONALITY [ 30 ] In R v Nasogaluak , 2010 SCC 6 , Justice LeBel explained what proportionality means in the context of sentencing, as follows (at para 42): For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. . .

Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. (Italicized emphasis in original; underlined emphasis added.) THE SERIOUSNESS OF THE OFFENCES [ 31 ] Since the Supreme Court of Canada’s decision in R v Nur , 2015 SCC 15 , it is settled law that possession of loaded, prohibited firearms with features that make them crime guns will result in significant penitentiary sentences.

The accused in that case was 19 years old, did not have a criminal record and was an excellent student, in other respects pro-social and had significant community and family support. Nonetheless, the Supreme Court upheld his sentence of 40 months in the penitentiary.

The loaded handgun was a crime gun, capable of discharging 24 rounds of ammunition and police had been called about threatening conduct outside a community centre. [ 32 ] The Crown filed R v Kennedy , 2016 MBCA 5 , where the accused was breaching a condition of the court to have no contact with his neighbour, and he was found with two loaded handguns in his pocket. Another eight firearms were found in his home, three of them loaded, along with 12 magazines and 200 rounds of ammunition.

He had been sentenced to an 18-month conditional sentence order (CSO) prior to Nur ; the appeal occurred after Nur was released by the Supreme Court. [ 33 ] Kennedy outlines the relevant sentencing principles and objectives at play and conducts a wide survey of s. 95 gun cases. The Court of Appeal found that Kennedy was not an unwitting gun owner who simply erred when storing his firearm near readily available ammunition, nor was he a criminal who carried a firearm as a tool of his trade (see para 52). A sentence of three years was substituted by the Court of Appeal. Clearly, in this case, Mr.

Mann was carrying the gun as part of his drug trade. The only purpose for carrying such a weapon is to threaten or inflict serious harm. [ 34 ] The sawed-off .22 calibre rifle was heavily modified so that it could be fired by one hand and the serial number was scratched off. This is a crime gun. It was loaded with five rounds of live ammunition, and Mr. Mann had another three rounds in his pants pocket. He also had a large hunting knife in his pant waistband, a kitchen knife in his sweater pocket and the drugs and drug trafficking paraphernalia.

[ 35 ] The fact that he was carrying the firearm and drugs in the circumstances of having a domestic dispute, with children present, made this a dangerous and serious set of circumstances. Mr. Sisson emphasized that the unpredictability and violence that has resulted from and can result from the combination of drug dealing and carrying loaded firearms engages the objectives of denunciation and deterrence. [ 36 ] In this case, Mr. Mann had a significant amount of cocaine, packaging materials and a contaminated scale in his backpack. The cocaine was worth between $1,500 and $1,700 on the street. This was street-level dealing, but a significant amount. Cocaine is a highly- addictive,

Schedule I substance. There is significant impact on the health care system related to drug addiction. The ripple effects of drug addiction were outlined by Judge Killeen in R v Lander (1 November 2018), Winnipeg 012-71715 (Man Prov Ct) (at page 4, lines 6- 17): The third great loser in all of this is society, because the crime that’s associated with drug use is something that we see in this Court almost every single day of the week.

Indeed, if I was to walk around the court rooms of the Provincial Court on any day, it would be hard to imagine that there wouldn’t be a case involving crimes committed by those who were addicted to a drug, particularly with respect to methamphetamine, but also with other drugs.

We see on a regular basis those who are reduced to the point where they have stolen everything they can steal from their family, they have defrauded every family member that they can defraud, they have abased themselves in every way possible, and ultimately are committing criminal acts; sometimes by involvement in the sex trade, often by involvement in theft, sometimes by involvement in far more substantial and dangerous crimes such as robbery; all for the purpose of feeding a habit. ASSESSING THE ACCUSED’S MORAL CULPABILITY [ 37 ] The typical markers of moral culpability suggest that Mr.

Mann has a high degree of responsibility in committing these offences. He was on two weapons and firearms prohibitions. One was for 7 years, imposed for a youth conviction for break and enter commit aggravated assault, and one for 10 years imposed for a conviction for having unauthorized possession of a firearm in a motor vehicle. He had three arrest warrants out for his arrest. He was bound by a release order to have no contact with his girlfriend and not to possess any weapons. [ 38 ] He was engaging in intentional risk-taking behaviour on all the offences.

The consequential harm of showing up and causing a disturbance at his partner’s home with five children present would have left them shaken and insecure at the very least. The consequential harm of cocaine use and addiction is well-known to the court. He told the presentence report (PSR) writer that he carried the gun and knives for protection while he was trafficking drugs. The normative character of his conduct by making a deliberate decision to carry a loaded crime gun, traffic in cocaine, all while violating court-ordered prohibitions, a release order and avoiding warrants, seriously violates societal values.

Mr. Mann told the PSR writer that he sold drugs to support his own habit and for financial gain. I note however, that the “financial gain” was to buy food. This is not a situation where he was driving a fancy car and buying luxury goods. It was at best subsistence living. [ 39 ] It is quite possible that Mr. Mann has fetal alcohol spectrum disorder (FASD). His mother told the PSR writer that she thought she lost the pregnancy when she was pregnant with Mr. Mann, and after that drank heavily for two months straight in the early part of the pregnancy, until she realized that she was still pregnant. Mr.

Mann was in a Learning Assisted Classroom (LAC) for the majority of his education. He has never had an FASD assessment and is now outside the age group (up to age 25) to receive such an assessment. The effects of FASD on various domains of the brain and how these affect moral culpability are well known to the court. Although there is no FASD diagnosis and assessment in this case, the nature of Mr. Mann’s offending conduct and circumstances of his life are consistent with such a diagnosis.

Without an assessment that is able to link the offending behaviour to specific injuries to various domains of the brain however, I am unable to attach any weight to that information. [ 40 ] I have alluded to Mr. Mann’s record. In addition to the offences already noted, he had youth convictions for mischief, flight from police and impaired driving, and assault. As an adult, he has 13 theft convictions from liquor stores. [ 41 ] This is only the beginning of the assessment of Mr. Mann’s moral culpability. Considering Mr. Mann’s circumstances as an Indigenous man is also critical.

A PSR was filed in this matter and provides additional background information about him. The PSR writer summarized that information poignantly (at p 12): Gladue factors such as family violence, neglect, untimely death, gang involvement, lack of positive role models, emotional abuse, physical abuse, substance use, incomplete education, intergenerational trauma, and loss of cultural identity bear prominently in the life of the subject and his family. [ 42 ] Mr. Mann’s great-great-grandfather was Kakakepenaise, one of the signatories of Treaty One in 1871 for the people of Sagkeeng.

Sadly, several people from the next several generations were forced into residential schools and as a result, Mr. Mann’s grandfather became a Christian and forbid his grandmother from teaching the children anything related to their Indigeneity. [ 43 ] His biological father was so abusive that his mother left him before Mr. Mann was born. His stepfather was in his life, albeit in a separate household, until his death in 2019. His mother struggled with alcoholism and several abusive partners. He witnessed that domestic violence.

He and his siblings experienced physical and verbal abuse from their mother and partners. The children were living in a party house where violence was normal. Both his older brothers were in opposing gangs; one of them was murdered in 2021. Mr. Mann was incarcerated at the time and could not attend the funeral due to COVID-19. He joined a gang as a young person, but left by age 18. [ 44 ] His misuse of alcohol and drugs has been a steady negative influence since his early teens; his offences usually occur while he is intoxicated.

He told the PSR writer that he started using fentanyl in 2017 after the death of his stepfather, but stopped in 2020 after

overdosing twice, but then started again after the murder of his brother, and continued up to the time of his arrest on these charges. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 45 ] Mr. Mann was on three warrants, bound by two weapons prohibition orders, and a release order not to have weapons or be in contact with his domestic partner. The offence took place in a domestic context. There were five children present. These are extremely aggravating circumstances.

As for the breach charge, the fact that he left the treatment facility one day after being granted judicial interim release is aggravating. [ 46 ] It is a mitigating factor that Mr. Mann pleaded guilty. It is further mitigating that he has accepted personal responsibility for the offences and regret for the harm caused, as noted in the PSR. RESTORATIVE SENTENCING [ 47 ] The Criminal Code was amended in 1996, as discussed earlier in this decision, to address the over-incarceration rates in Canada, especially for Indigenous people.

The question of whether a restorative sentence is a realistic consideration must be posed. [ 48 ] There is basis for imposing a sentence that has restorative aspects. Mr. Mann is still young, 28 years of age. He has never had the benefit of a probation order as an adult, and as a youth he completed probation orders without breaches. [ 49 ] Despite his assessment as someone at high risk to reoffend, the PSR writer assessed him as a suitable candidate for community supervision. [ 50 ] His family is supportive and his mother and sister are positive role models.

His mother has reconnected with the Ojibway culture; even when Mr. Mann was a young child she took him to ceremonies occasionally. He also has positive support in a former youth mentor, Mr. Will Hudson at the Andrews Street Family Centre, who knew him when he was between the ages of 13 and 15. Mr. Hudson spoke of him as a “really good kid” who always went to school, and wanted to go to the library and walk and talk during his support shifts. He asked the PSR writer to pass on his number to Mr. Mann, which was done, so they have been in contact. He plans to stay in touch with Mr. Hudson. [ 51 ] Mr.

Mann has obtained his Mature Student diploma while in custody. He has taken not only the End to Aggression program, but also Coming to Terms. [ 52 ] Written communication is a strength for him and he enjoys writing lyrics, poetry and journaling. He is interested in further education, particularly the Creative Communications Program at Red River College. He would like to work in web design and video production. [ 53 ] He has never taken substance abuse treatment, although he has made two attempts.

He resided in the Winding River area of Headingley Correctional Centre (HCC) in 2021, but no programming was offered due to COVID-19. He tried to re-enter Winding River, in fact he applied when he was still at the Winnipeg Remand Centre (WRC), but he was disallowed, because he did not have an incident- free Corrections record. The incident involved him being attacked in the WRC. [ 54 ] He works in the kitchen at HCC. [ 55 ] The PSR writer noted that he has experienced symptoms consistent with depression and anxiety for many years, although he does not have an official diagnosis.

He is willing to attend for an assessment and to explore treatment options. THE SENTENCE [ 56 ] This is a case where a significant jail sentence is necessary to express general deterrence and denunciation. [ 57 ] Reducing the jail sentence from the five-and-one-quarter years to four years and adding a lengthy probation period is important in this case, to ensure that denunciation and deterrence are expressed, and to provide the best possibility for the long-term protection and safety of the community.

The total sentence will therefore be longer than what the Crown is proposing. [ 58 ] In order to impose a probationary sentence, the going forward sentence must be a provincial one, that is, two years less a day going forward. [ 59 ] The sentence for the possession of the loaded gun will be four years. The sentence for violating the gun prohibition order is one year consecutive. The sentence for breach of his release order is one month consecutive.

The sentence for possession of cocaine for the purpose of trafficking is 18 months concurrent. [ 60 ] In taking a last look at the sentence, on the basis of the principle of totality, this sentence of five years and one month would require that he serve it in the penitentiary, which would be crushing. Adjusting all the sentences to concurrent ones on the basis of totality, would allow Mr.

Mann to serve the remainder of his sentence in HCC and would allow me to impose a further two-year sentence in the community in the form of a probation order. [ 61 ] The jail sentence will therefore total four years. [ 62 ] The four-year sentence will be reduced by the 733 days Mr. Mann has spent in presentence custody, leaving just under two years for his sentence going forward. [1] For certainty, his going-forward jail sentence shall not exceed two years less a day. [ 63 ] Mr.

Mann’s jail sentence will be followed by two years of supervised probation, to provide for his rehabilitation and to protect the community. The conditions are as follows:

- Keep the peace and be of good behaviour. - Report to Probation Services within 24 hours of your release from jail. - After you report the first time, you must continue to report when and how you are told to report by your Probation Officer. - Reside as directed by your Probation Officer. - Do not change your address without advising your Probation Officer, and obtaining their agreement to the move. - Attend, participate and complete any assessment, programming or counselling as directed by your Probation Officer, including a psychiatric assessment and any therapy and programming to address trauma, grief and substance abuse. - Do not contact or communicate with Crystal Spence or attend to her home, workplace, place of worship or any place she regularly attends. - Do not possess any firearms or prohibited weapons. - Do not possess any cell phone, pager, BlackBerry or other wireless or radio communication devices except you may have one cell phone that is not password protected and the number has been provided to your Probation Officer. - Abstain absolutely from the consumption of alcohol and illegal drugs. [ 64 ] The following ancillary orders are made: - Forfeiture of the items seized at the time of your arrest; -

Section 109 lifetime weapons prohibition for the s. 95 and possession for the purpose of trafficking offence; -

Section 487.051(1) DNA order on the possession for the purpose of trafficking offence, which is a secondary designated offence. You must provide a sample of your DNA while in custody. [ 65 ] The victim surcharge is waived. Original signed by Judge Devine CYNTHIA A. DEVINE, P.J.