R. v. Windsor Date:, 2015 BCPC 120

Citation: R. v. Windsor Date: 20150414 2015 BCPC 0120 File No: BB100839-1 Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RUSSELL AARON WINDSOR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: A. Ghatak Counsel for the Defendant: D. Carpentier Place of Hearing: Bella Bella , B.C. Date of Hearing: April 14, 2015 Date of Judgment: April 14, 2015 [ 1 ] THE COURT: You know, we had a relationship when I was sitting here. I was talking about it at lunch and I could not be

more disappointed to see you here and to have to deal with you. You used to be on our basketball team. I knew you when you worked at the ambulance and I knew you outside of that. [ 2 ] THE ACCUSED: Yes. [ 3 ] THE COURT: I played basketball -- well, if you can call it playing basketball, with you. [ 4 ] I have to say that I admire you and I encourage you to continue to assert your traditional ways of life, to assert your territory and your rights over your territory, and do all the good things that you do do in the community.

Unfortunately, you do not have the option of having the hereditary chiefs gather and your community deal with this in a truly traditional way. You are before the courts and, although we are in your territory, this is the way it is in Canada and so you are stuck dealing with this in the criminal courts of the dominant culture. [ 5 ] I am going to go ahead and I impose a sentence that is within the existing legal parameters. What I want to understand is whether you can accept that that is the way it is right now in Canada with First Nations people and that you do not have any other true option.

You will be dealt with to some extent, by the restorative justice here in the community and you are not going to have to go to jail. You will be able to remain here with your family which recognizes how difficult jail would be for someone like you. [ 6 ] So are you going to respect this order? [ 7 ] THE ACCUSED: Yes. [ 8 ] THE COURT: Okay. The other thing I want to talk about is how you spent a great deal of time sober, working hard, and supporting your family. There is nothing to indicate that you and your family do not have a positive family life.

You have your early criminal history which was serious, and occurred when you were young. But then you got on with your life. You went to school. You became an ambulance attendant, a paramedic -- were you a paramedic? [ 9 ] THE ACCUSED: Paramedic. [ 10 ] THE COURT: Paramedic, and were doing good work in the community. You suffered some losses and ended up drinking and then ended up committing this offence, and when I look at all that and I look at what is in this report, what I see is someone who is not at peace. [ 11 ] THE ACCUSED: No, and you are correct about that. [ 12 ] THE COURT: Okay.

So, in the past when you were younger and you were under the orders of the court, a standard criminal court, it does not look like you wanted to accept the assistance that was offered. [ 13 ] THE ACCUSED: Then? [ 14 ] THE COURT: Then. [ 15 ] THE ACCUSED: No. [ 16 ] THE COURT: Do you see that you need to try and come to some sense of peace in your life? [ 17 ] THE ACCUSED: I would say yes.

I would have to. [ 18 ] THE COURT: Okay. [ 19 ] THE ACCUSED: If not, I can continue down this road which at this very time in my life I cannot afford -- [ 20 ] THE COURT: Good. [ 21 ] THE ACCUSED: -- not only for myself, but for my family. [ 22 ] THE COURT: Right, and I heard that you have a very large extended family. [ 23 ] THE ACCUSED: Yes, yes. [ 24 ] THE COURT: Did I hear you are a grandfather to three? [ 25 ] THE ACCUSED: Five. [ 26 ] THE COURT: Five? [ 27 ] THE ACCUSED: Five.

In our traditional ways, those kids thought that -- in their minds, I guess, they can't believe -- put words in their mouth, but they needed extra parental -- [ 28 ] THE COURT: Mm-hmm. [ 29 ] THE ACCUSED: -- guidance and help with their sports and with what they were doing within the community because their parents were not showing them that support so they came to us and me and my wife took that on. [ 30 ] THE COURT: So that is a wonderful thing to do.

[ 31 ] THE ACCUSED: Yes. [ 32 ] THE COURT: But it would be easier if you were at peace. [ 33 ] THE ACCUSED: Yes. [ 34 ] THE COURT: Your background -- I do not know that you and I have ever had a conversation about that. You never came to court except as a witness when I was sitting here and we did not discuss the history of your people.

Have you done any reading about the First Nations in Canada, the assimilation policies, why there were residential schools? [ 35 ] THE ACCUSED: I never have gone into that part of the research. [ 36 ] THE COURT: Okay. [ 37 ] THE ACCUSED: I have researched on what my people have done -- [ 38 ] THE COURT: Recently? [ 39 ] THE ACCUSED: Not only recently, but in the past and not only to themselves, but to other nations -- [ 40 ] THE COURT: Okay, well, you are -- [ 41 ] THE ACCUSED: -- along the coast right from Alaska down to Portland. [ 42 ] THE COURT: I read a book recently that was focused on the Penelakut in the Gulf Islands and they had many tales of the Bella coming down to their communities. [ 43 ] Anyway, for a long time, maybe a few hundred years, when Canada was first settled, it was actually a fairly positive relationship between First Nations people and the settlers, the Westerners who were coming, but due to the disease they brought, your numbers were reduced substantially.

Recently I read that they estimate there could have been two million First Nations in Canada. That is a huge number. [ 44 ] THE ACCUSED: Yes. [ 45 ] THE COURT: I have heard there were perhaps 100,000 or more on the West Coast, just the coastal people who were reduced to a few thousand -- [ 46 ] THE ACCUSED: Yes. [ 47 ] THE COURT: -- as a result of disease. As the Westerners came and settled more and more of Canada, as one writer has recently put it, the Indian became inconvenient and more and more Westerners wanted your land, they wanted your resources, they wanted it all.

Some was settled by treaty, some not, some of the land was just taken. [ 48 ] Your people were put on reserves and then around the middle of the 1800s, it was determined that Indians were just too much trouble and there were not going to be any more Indians in Canada. Our government, as horrifying as it is, set out to do just that, and residential schools were conceived of. It is hard to believe that anyone could conceive of that and think it appropriate, but these were people who believed in what was then known as social Darwinism, the survival of the fittest.

Western people believed themselves to be superior and others inferior and they were going to assimilate all of the First Nations people in Canada. [ 49 ] There would not be any Indians any more. The residential schools were designed to kill the Indian in the Indian child. We now know, as more and more documents and information comes out, just how horrifying those schools were, and that your people were tortured. Children were subjected to experiments, both in nutrition and otherwise. It is a very sad part of Canadian history. [ 50 ] So your parents and grandparents were subjected to that.

What we also know, and did not really know before, is that trauma travels from generations. So, for example, the children of Jews who were in concentration camps are traumatized even though they were never there or never in Europe, and similarly for First Nations people. [ 51 ] One of the things that happened was that they took away your children so you had communities with no children. The parents who went to residential school knew what would happen to their children. They would have to give them up to the authorities and watch them take them away.

Those children returned knowing what was in their future and any children's future and that happened for generations. It was an experiment and you know all too well what the results were. [ 52 ] You look around this community, you were a paramedic in this community, you know first-hand the misery that it has caused, and you suffer from that, too. You rose above it. You got yourself out of it. You stayed sober.

You were a contributing member for a long period of time, but this offence would say to me, and I hope it says to you, "I need to do some work," not just on yourself, but to be a model for all of those people who look up to you, to all those children who are in your care, to work to make it better. [ 53 ] You have quit drinking again and I am very pleased to hear that because alcohol, not surprisingly, is something that was made readily available. You could not get proper food on your reserves, but they would be happy to bring in liquor.

Any idea why that might be? [ 54 ] THE ACCUSED: My grandparents always told me that foreigners brought liquor in to get them drunk and take their stuff, take their land. [ 55 ] THE COURT: That is exactly right, and it --

[ 56 ] THE ACCUSED: -- take whatever us -- Indians have so they can have it. [ 57 ] THE COURT: Okay, well, it was pretty effective, was it not? [ 58 ] THE ACCUSED: Yes, and it is still effective today. [ 59 ] THE COURT: It is still effective today. So you were somebody who I saw -- because you were sober the whole time I knew you, who I saw as somebody who really had overcome these challenges and who was a positive role model in the community, and so it is harder for you to fall, frankly. [ 60 ] There is still a huge problem in this community.

I was just talking to a community member this morning who has a huge concern about the drinking amongst the young people in the community. Some say that is because they still lack hope. [ 61 ] You are much older and much more mature now. You are somebody who has got the smarts, the intelligence, the capability to really make a positive difference and I just hope that you deal with, I will call them for today's purposes, your demons so that you can have true peace in your life. You will get that through counselling and through your First Nations spiritual practices.

You probably get some of that when you are on the water, some sense of peace. [ 62 ] I hope that you will continue to do all that and encourage others to paddle instead of drink, to fish instead of drink, so they will be able to get up early and sober and go out into the woods and collect, go to the beaches and gather food, to dance, to do your crafts. You cannot do any of that if you are drunk or hung over. [ 63 ] THE ACCUSED: No, not at all. [ 64 ] THE COURT: There is one other thing I wanted to say. I am surprised to read in this report that you are described by some, as the Crown says, as a bully.

The likelihood is you have difficulties in controlling your emotions because of your upbringing. Anyone who has had that kind of upbringing would have significant challenges in terms of regulating their emotions. Everybody has trouble regulating their emotions from time to time and in different circumstances. Nobody is perfect in that regard, but the likelihood is there is a grain of truth in those reports. [ 65 ] So you have to reflect, "Why do some people in the community think of me as a bully?" You are a big guy, you have a gruff voice. I never found you to be bullying.

I never saw you behave in any way that was bullying, but you should just reflect on that and say to yourself, "I ought to think about that if that is the impression I am creating," because that is not who you want to be, right? [ 66 ] THE ACCUSED: No, because that is what my father was. [ 67 ] THE COURT: Your father was a bully? [ 68 ] THE ACCUSED: Yes, and his father. [ 69 ] THE COURT: Yes. So it is not surprising and that behaviour is certainly something that could be changed and they say that kind of behaviour comes from insecurity. That is my understanding of what they say most of bullies.

They themselves feel inadequate or insecure. I go back to when I said to you, you need to come to be peaceful, and that will take some work. I also just want to say that I am proud of you for participating in the protest to stop the local herring fishery. [ 70 ] Is there anything else you want to say before I go on in this matter? [ 71 ] THE ACCUSED: Just that I am sorry -- [ 72 ] THE COURT: I am sure you are. [ 73 ] THE ACCUSED: -- that I disappointed you. [ 74 ] THE COURT: Well, do not worry about disappointing me.

It is yourself that you have to deal with and your family and the community, but you can regain your position in the community by working hard and being a positive member. It is not all gone. Clearly, people still respect you. The Shearwater is still employing you. [ 75 ] THE ACCUSED: Yes. [ 76 ] THE COURT: So all is not lost. This is certainly a setback for you in your life, but you can go forward. Part of what you are going to be able to do is serve out this sentence. In our culture, the dominant culture, theoretically, you are free once you have served your sentence. You are done. You can move forward.

You do not have to look back, although there will always be the record. [ 77 ] You also lost your employment which was important to you. [ 78 ] THE ACCUSED: Yes. [ 79 ] THE COURT: It was something that I know you enjoyed doing. [ 80 ] The Crown is quite right and Ms. Carpentier is not able to argue too strenuously against the fact that a jail sentence is appropriate.

It is also quite clear that a conditional sentence order is appropriate, so that you can stay in the community. [ 81 ] I hope you do understand that failing to comply with the terms of this order will result in an immediate arrest, potentially being removed from the community, and facing a bail hearing. You just do not want to be in that position. So make sure that you comply.

[ 82 ] It is not going to be all that difficult for you to comply with the terms as the Crown has requested them, and if you do comply, and get counselling, and do the community work service, you can hopefully move forward with your head held high saying, "I did what I was required to do," and that is also a good example for all of those who look up to you, that you took your lumps, you behaved yourself, you respected the court, and you got through your order without any difficulty.

I am just guessing you do not want to be in that chair again. [ 83 ] THE ACCUSED: No. [ 84 ] THE COURT: I do not want to see you in that chair again. [ 85 ] I am going to impose a conditional sentence and I am going to impose it for a period of 10 months, slightly less than the Crown was asking for, and post probation for a period of eight months.

In total, it is a year and a half that you are going to be bound by these orders. [ 86 ] With respect to the conditional sentence, you are to keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 87 ] You must report to a supervisor here today and, thereafter, when and where required to do so by the supervisor and in the manner directed by the supervisor. [ 88 ] You must remain within the Province of British Columbia unless written permission to go outside of the province is obtained from the supervisor. [ 89 ] You must notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. [ 90 ] You must provide your current residential address to your supervisor and not change that without their prior written permission. [ 91 ] You will abide by a curfew of 7:00 p.m. to 7:00 a.m., daily, during which time, you shall be in your residence or in the yard of your residence; is that clear? [ 92 ] THE ACCUSED: Yes. [ 93 ] THE COURT: Okay, except for the purpose of attending directly to any place of employment, and working, and returning home directly thereafter, or reporting to your supervisor as your supervisor requires, or for the purposes of attending for any medical attention. [ 94 ] MS.

GHATAK: And I meant to mention that that should include for purposes of a direct family member, not just himself, so that if there is a medical emergency with respect to some other -- [ 95 ] THE COURT: Oh, okay. [ 96 ] MS. CARPENTIER: I have no issue with that. [ 97 ] THE COURT: Okay, I am just going to rephrase that. [ 98 ] You will be bound by a curfew from 7:00 p.m. to 7:00 a.m., seven days a week.

You may be outside your residence during your curfew for the purpose of going directly to any place of employment, working, and returning home directly thereafter, except for the purpose of any medical emergencies for yourself or any member of your immediate family. [ 99 ] Your supervisor may give you written -- I do not need to include reporting because he is going to report between 7:00 a.m. and 7:00 p.m. I assume. [ 100 ] MS. GHATAK: Right.

Yes, that is correct, yes. [ 101 ] THE COURT: Right. [ 102 ] Your supervisor may give your written permission to be outside your residence for the purposes of any education -- or, sorry, for -- sorry, for the purposes of performing your community work service or attending for any cultural events or food or medicine-gathering. [ 103 ] Is there any other reason he would need to be out other than programming -- [ 104 ] MS. CARPENTIER: Well -- [ 105 ] THE COURT: -- food-gathering. [ 106 ] MS. CARPENTIER: -- he is a basketball referee.

He does the watchman work, but he does that during the time that he is out for -- to go to fisheries, so that should not be an issue, but it is the work with the kids that -- or the children, that I am concerned mostly about the basketball refereeing. [ 107 ] THE COURT: Is that the basketball? [ 108 ] MS. CARPENTIER: Mm-hmm, and coming up for the summer, he goes out with Robert Lansdowne, he is the drug and alcohol counsellor for the funding that goes through medical to teach children to fish and store, and I would have assumed that the food fisheries was part of his working, as well. So that one of --

[ 109 ] THE COURT: Okay. So -- [ 110 ] MS. CARPENTIER: -- and, again, it may blend into performing community work service because I am sure that the teaching of fishing techniques to the children would be part of that. [ 111 ] THE COURT: Do you get paid to go out to referee? [ 112 ] THE ACCUSED: No. [ 113 ] THE COURT: No, and do you coach or just ref? [ 114 ] THE ACCUSED: I just ref. [ 115 ] THE COURT: Okay. I am going to redo that.

Your supervisor may give you written permission to be outside your residence for the purpose of food-gathering, including fishing, or medicine-gathering; teaching fishing or food-gathering or medicine-gathering; attending to any cultural practices or events; or teaching cultural practices; and volunteering as a basketball referee. [ 116 ] Does that cover it all, Ms. Carpentier? [ 117 ] MS. CARPENTIER: I think that is does. Do you think that it does? [ 118 ] THE COURT: Okay. All right.

So that is your curfew, and then you must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. [ 119 ] You shall attend for, accept, and complete any counselling as is directed by your supervisor and complete such counselling to the satisfaction of your supervisor. [ 120 ] You will perform 200 hours of community -- actually, I am going to split that up -- [ 121 ] MS.

CARPENTIER: Yes. [ 122 ] THE COURT: -- 150 hours of community work service within the first eight months of the term of this order under the supervision of your supervisor, or such other person as the supervisor may designate for that purpose.

The place where and the time when such work is to be performed is to be arranged with your supervisor - or, sorry, Madam Clerk, you can just use this standard term - or the designate, and all the work is to be completed to the reasonable satisfaction of your supervisor within the first eight months of the conditional sentence order. [ 123 ] You will provide a letter of apology to the satisfaction of your supervisor to be provided via your supervisor to the Shearwater Marine Group and to Jesse Slett, and complete the same within the first 30 days of the term of your order. [ 124 ] You will participate in any victim-offender reconciliation program which may be arranged by your supervisor. [ 125 ] All right.

I think I have now covered all the terms you were seeking on the conditional sentence. [ 126 ] MS. GHATAK: Did you cover the letter of apology? [ 127 ] THE COURT: I think so. [ 128 ] MS. GHATAK: You did? [ 129 ] THE COURT: Yes, I did. [ 130 ] MS. GHATAK: Yes, then I missed that. Yes, you have. [ 131 ] THE COURT: Okay. All right, and then I am going to place you on probation, as I indicated, for a period of eight months.

The terms of that will be that you will keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 132 ] You must report within 72 hours of the conclusion of your conditional sentence to a probation officer or their delegate here in Bella Bella and report thereafter as and when directed. [ 133 ] You shall provide your current residential address to the probation officer and not change that without their prior written permission. [ 134 ] You will perform 50 hours of community work service under the supervision of your probation officer, or such other person as the probation officer may designate for that purpose.

The place where and the time when such work is to be performed is to be arranged with your supervisor or the designate, and all the work is to be completed to the reasonable satisfaction of your probation officer within the first six months of your period of probation. [ 135 ] You shall attend for, accept, and complete any counselling as is directed by your probation officer and complete same to the satisfaction of your probation officer. [ 136 ] Are you seeking an abstinence term on that? I think --

[ 137 ] MS. GHATAK: I am not seeking it on the probation order. [ 138 ] THE COURT: All right. The reason it is on the earlier one is because it is a jail sentence -- [ 139 ] MS. GHATAK: Yes. [ 140 ] THE COURT: -- and so, not surprisingly, you are not allowed to have drinks when you are serving a jail sentence. [ 141 ] Finally, this order will stand as a civil judgment. If you do not have money, they cannot collect it. You never know, you might win the lottery and then Shearwater can get their money back and the insurance company can get their money back.

The insurance company might well sue you or seek it through a process called subrogation. So when you have insurance, if someone else is at fault and the insurance company pays out, they could pursue that in any event. A dry judgment is a dry judgment. So I am not certain that this will impact you significantly, but as I say, it is going to be there just in case.

They would have to renew it in any event to continue to be able to enforce it. [ 142 ] So pursuant to s. 738 of the Criminal Code , there will be an order of restitution in the amount of $5,000 in favour of Intact Insurance Company, and a further order in the amount of $6,228.19 to the Shearwater Marine Group. [ 143 ] Do you have any questions or anything about all of that? It will get explained to you again. It is all going to be written down for you. [ 144 ] Ms. Carpentier, anything? [ 145 ] MS. CARPENTIER: No, I believe that is everything. [ 146 ] THE COURT: Ms. Ghatak? [ 147 ] MS. GHATAK: No.

I do not think the victim fine surcharge is an issue because the charge is too old, correct? It predates the legislation, Your Honour. [ 148 ] THE COURT: Yes. Okay, so I will waive the victim fine surcharge. [ 149 ] THE CLERK: And Crown is directing a stay of proceedings, Your Honour, on [indiscernible/overlapping speakers] 14. [ 150 ] MS. GHATAK: I am directing a stay of proceedings with respect to the balance of the counts -- [ 151 ] THE CLERK: On the Info? [ 152 ] MS. GHATAK: -- on the Information, yes. [REASONS FOR SENTENCE CONCLUDED]