R v Bird, 2024 ABCJ 17

In the Alberta Court of Justice Citation: R v Bird, 2024 ABCJ 17 Date: 20240119 Docket: 220919294P1 Registry: Calgary Between: His Majesty the King - and - Dominik Bird Reasons for Sentence of the Honourable Justice B.C. Stevenson Charges: [ 1 ] The accused is charged, criminally, with two counts of arson, contrary to

section 433(a), and one count of using or trafficking in a stolen credit card, contrary to section 342(1) (

c) of the Criminal Code . [ 2 ] At the outset of the sentencing hearing, three other charges were brought to the Court, and the accused entered elections and pleas to the three new charges. It was agreed that the particulars would be read into the record, and the sentencing for the three would be dealt with following the sentencing for the arson and credit card charges.

The Background: [ 3 ] In an Agreed Statement of Facts, on both May 18, 2022, and on June 4, 2022, in the early morning hours on both dates, the accused was prowling in the backyards of homes in the Varsity Estates area of Northwest Calgary. [ 4 ] His actions on both occasions was captured on neighbours’ CCTV. [ 5 ] On May 18 th , shortly after 3 a.m. Bird was recorded entering an unlocked shed outside of the house at 1168 Varsity Estate Drive N.W.

[ 6 ] Among other outdoor items, the shed contained a gas-powered lawn mower, a jerry can with gas in it, and garden fertilizer. [ 7 ] Bird set the shed on fire. [ 8 ] The fire damaged 1168 Varsity Estate Drive N.W., as well as the house at 1166 Varsity Estate Drive N.W. [ 9 ] The house at 1168 was occupied by Zoltan and Marie Lukacs, aged 65 and 64, respectively. [ 10 ] The neighbouring house at 1166 was owned by Graydon Glans. [ 11 ] The fire damage to 1168 is estimated at $675,000 and to its contents between $180,000 and $200,000. [ 12 ] The fire damage to 1166 is estimated at $50,000. [ 13 ] Approximately two and a half weeks later, Bird was captured on video at 4:28 a.m. on June 4, 2022, riding a bike up to 1232 Varsity Estate Road N.W. [ 14 ] He then went into an unlocked attached garage and started a fire. [ 15 ] The fire spread from the garage into the main residence, causing such great damage that it had to be re-built. [ 16 ] The cost to rebuild the house is $700,000 and the cost of the contents lost was $120,000. [ 17 ] The total estimated damage as a result of the two fires set by Bird is in the area of $1,725,000 and $1,745,000. [ 18 ] At the time of the fire, 1232 was occupied by Remi and Rhonda Gravel and their nine-year old daughter. [ 19 ] Between the evening of June 2 and June 3, Vaughan Mealey’s car, parked at 4219 Vandyke Place N.W., was prowled and items, including his credit card was stolen. [ 20 ] On June 3, approximately 25 hours before the second fire at 1232 Varsity Estate Road N.W., Bird used Mealey’s stolen credit card at a 7-11 store on Northmount Drive N.W.. [ 21 ] He was apparently recorded on the store’s CCTV. [ 22 ] Bird was interviewed by Calgary police on October 20, 2022, and he admitted committing all three offences. [ 23 ] The Agreed Statement of Facts was approved by the accused Bird, his counsel Patrick Flynn, and Crown counsel Tara Wells on February 6, 2023, and filed with the Court on that date. [ 24 ] A FAOS report and a Gladue report was ordered, as Bird is a member of the Black River First Nation in Manitoba and has First Nation status. [ 25 ] The FAOS report was received in late June of 2023, and the Gladue report on November 24, 2023.

Sentencing Legislation [ 26 ] Arson carries a possible sentence of life imprisonment. [ 27 ] Using or trafficking in a stolen credit card carries a possible sentence of ten years imprisonment. Sentencing Positions [ 28 ] Ms. Wells, for the Crown, submits that an appropriate global sentence should be in the range of 6-7 years imprisonment. [ 29 ] Mr. Flynn, for the accused, submits that an appropriate global sentence should be no greater than 5 years.

Analysis [ 30 ] Sections 718, 718.01, 718.02, 718.03, 718.04, 718.1, and 718.2 provide considerable guidance to justices and juries in the sentencing process. [ 31 ] Those sections, enacted by the Parliament of Canada, are deemed to reflect the will of the Canadian people. [ 32 ] I quote

section 718 that defines the fundamental purpose of sentencing: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct,

(

b) To deter the offender and other persons from committing offences; (

c) To separate offenders from society, where necessary; (

d) To assist in rehabilitating offenders; (

e) To provide reparations for harm done to victims or to the community; and (

f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 33 ] Of the sections mentioned, on the admitted facts of this matter, sections 718, 718.1, and 718.2 are the most relevant. [ 34 ]

Section 718.1 states: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 35 ]

Section 718.2 states: “A court that imposes a sentence shall also take into consideration the following principles: (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing, (

i) Evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) Evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) Evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) Evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) Evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) Evidence that the offence was a terrorism offence, (vi) Evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and (vii) Evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, shall be deemed to be aggravating circumstances; (

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

c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” [ 36 ] Of the above three sections, and in the circumstances of this matter, I believe that the most important principles that should be emphasized in arriving at an appropriate sentence are: •

Section 718 (purpose and principles) •

Section 718.1 (proportionality) •

Section 718.2(a)(iii.1) (victim impact) •

Section 718.2(b) (parity) •

Section 718.2(c) (length and harshness) •

Section 718.2(e) (Aboriginal consideration)

Analysis Background of the Accused [ 37 ] As mentioned earlier, pursuant to

section 718.2(

e) I ordered a Gladue report. [ 38 ] From that report the following can be gleaned concerning Bird’s background. [ 39 ] He was born in Winnipeg, Manitoba, and raised throughout in Winnipeg, Black River First Nation, and Hollow Water First Nation. [ 40 ] He was uncertain about members of his family attending residential schools.

However, he suspected that his paternal grandparents did, and if so, assumes that the impact led them to be very unaffectionate, had difficulty displaying positive emotions, using physical and sexual violence as discipline, and consuming alcohol to cope. [ 41 ] His mother, Amanda Harry, was homeless for five years during her teenage years and became pregnant with Bird when she was 15. [ 42 ] Bird’s father was Randal Bird. [ 43 ] Amanda advised the author of the Gladue report that Randal did attend a residential school in Manitoba at a very young age and as a result lost his Indigenous language, his traditions, cultural connections, and family. [ 44 ] She also advised that most of Randal’s family became addicted to drugs and alcohol to cope with the generational trauma. [ 45 ] Following her separation from Dominik’s father after the birth of a second child, Eric, Amanda moved back to Calgary. [ 46 ] She left both children in the care of the paternal grandparents on the reserve in Hollow Water First Nation. [ 47 ] When the accused was two, family services apprehended both children. [ 48 ] For two years following their apprehension, the two boys were in and out of many foster homes, eventually being placed in the care of their father’s parents, Ruby and Randal Bird, over the objections of their mother Amanda. [ 49 ] The accused resided with the paternal grandparents from age 3-7, where he experienced both physical and sexual abuse at the hands of the grandfather. [ 50 ] Both boys were eventually transferred to the Black River First Nation to be cared for by a cousin of their mother Amanda, Warren and Janice Bird. [ 51 ] While with those two, the accused suffered physical abuse at the hands of two adult children of the couple. [ 52 ] He lived on the Black River First Nation for seven years. [ 53 ] When bird was 14, he and his brother Eric moved back to Winnipeg to live with their mother Amanda and her partner and a daughter, all in a one-bedroom apartment. [ 54 ] During this period the accused witnessed a great deal of domestic abuse. [ 55 ] In his teens the accused became friends with an individual by the name of Timothy, who exposed Bird to drugs, alcohol and a gang lifestyle and culture. [ 56 ] During this time the accused apparently used drugs and alcohol to excess and was hospitalized on multiple occasions for overdosing. [ 57 ] His friend Timothy moved to a reserve in Manitoba.

There he was struck and killed by a motor vehicle. [ 58 ] At age 15 he moved to the Hollow Water First Nation to live with his father.

He did not attend school during this period. [ 59 ] At age 17 Bird again moved to Winnipeg to live with his maternal aunt, uncle and cousin. [ 60 ] While trying to complete his schooling, he continued to use alcohol and, with a cousin, began to experiment using cocaine. [ 61 ] After a year he was contacted by his mother Amanda and he moved to Calgary with her. [ 62 ] Following a two-year toxic relationship, where excessive substance abuse and violence were common, in 2018 Bird was convicted of assault with a weapon and received a prison sentence of three months plus one year’s probation. [ 63 ] He violated the probation order twice and received an additional jail term for the violations, as well as for convictions for theft under $5000 and two failures to attend court charges. [ 64 ] When this toxic relationship ended, Bird walked and/or hitch-hiked back to Winnipeg.

[ 65 ] At the time of these offences, Bird appears to be in a stable relationship with a woman from the Bloodvein River First Nation in Manitoba. [ 66 ] Both the woman and her mother have been, and continue to be, very supportive of the accused throughout his current incarceration pending his sentencing hearing.

Mental Health [ 67 ] The accused’s mental health first arose when Bird was diagnosed when he was 10 with Attention-Deficit Hyperactivity Disorder (ADHD). [ 68 ] The Gladue report writer believes that the accused may benefit from a Fetal Alcohol Spectrum Disorder screening, as his mother Amanda used alcohol and drugs while pregnant with him. [ 69 ] Bird self-described anxiety during pre-adult and adult years, and other sources believe that he also suffers from depression from, as his counsel Mr.

Flynn articulated in his sentencing submissions, having been largely abandoned and devoid of loving and caring relationships for his entire life. [ 70 ] Throughout his late teen years and adult life to date, Bird has experienced major events of alcohol and substance abuse, including use of Cannabis, Cocaine, Psilocybin Mushrooms, LSD, Ecstasy, MDMA, Percocet, Heroin and Xanex. [ 71 ] As mentioned earlier in these reasons, I have also had the benefit of a psychiatric pre-sentence report focusing on risk assessment by Dr.

Duska of the Southern Alberta Forensic Psychiatric Centre. [ 72 ] In that report the accused is categorized in the moderate range of possible future recidivism. [ 73 ] However, Dr.

Duska opines that if the accused was to experience substance abuse relapse or intoxication, his risk would rise significantly – “likely to a high risk of recidivism”. [ 74 ] The report concludes with diagnosing the accused with features consistent with an anti-social personality disorder. [ 75 ] Persons with that disorder will demonstrate features of failure to conform to social norms with respect to lawful behaviour, deceitfulness, impulsivity, irritability and aggressiveness, reckless disregard for safety of self and others, and a lack of insightful remorse. [ 76 ] In addition, the psychiatric report diagnoses Bird as having a Polysubstance Abuse Disorder. [ 77 ] Dr.

Duska is of the opinion that given Bird’s past history the main factor that needs to be addressed before any modifications of his behaviour would be likely to occur is that of substance abuse – by availing himself of addiction treatment services within custodial facilities, a residential relapse prevention program upon release, and outpatient community programs. [ 78 ] Dr. Duska also recommends that Bird should participate in anger management and trauma-focused therapy. [ 79 ] Counsel have referred me to several decisions that involved indigenous offenders: • R v Rabbit –

(2023) ABCA 170 • R v Swampy –

(2017) ABCA 134 • R v Ledesma –

(2022) ABCA 285 • R v Yellowknee –

(2017) ABCA 60 • R v Nault –

(2017) ABPC 296 [ 80 ] In Rabbit the court stated at paras. 42-43, and 47: “42. Vats of judicial ink have been spilled over the second foundational point. Still, Indigenous people continue to be vastly overrepresented in the criminal justice system, and this overrepresentation continues to rise: R v Hills , 2023 SCC 2 at para 87 ; R v Natomagan , 2022 ABCA 48 at paras 7 , 8.” “43. With or without a Gladue report, s 718.2 (

e) of the Criminal Code requires judges to do the work of appreciating the degree of responsibility of Indigenous offenders. The Gladue report filed in this case is tragically typical. It could have been drawn from past jurisprudence, studies and reports, beginning with the parents’ residential school experience. The appellant endured abuse and addictions in his family home, was taken out of his community and placed in group care, and struggled to readjust to his home community, poverty, low education levels, disconnection from family and culture, unstable relationships, and depression”. “47.

To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of different race, culture, or background.

This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.” [ 81 ] In the matter before me, there are similarities in the background of the accused, and his personal tragedy likely flowing from this dark

chapter in our nation’s history, leading to his criminal conduct described in the Agreed Statement of Facts, is horrific. [ 82 ] While

section 718.2(

e) focuses on Aboriginal (or Indigenous) offenders, in my opinion it is important to understand that individuals involved in crime such as those committed by Bird are not all Indigenous persons. [ 83 ] They may come to Canada from nations where trauma they have experienced in their homelands may have even exceeded that visited upon Indigenous Canadians by an inhumane educational system. [ 84 ] Recent arrivals from Afghanistan and Ukraine, for example, may well deserve the same delicate judicial consideration anticipated in Rabbit . [ 85 ] Here Bird was highly intoxicated on each occasion – approximately two weeks apart – when he set the fires recklessly that caused huge damage to several homes. [ 86 ] He has a history of major alcohol and drug addiction. [ 87 ] He offers no explanation for his criminal conduct, other that his addictions, primarily to alcohol, and the all-too-common Indigenous dysfunctional familial history. [ 88 ] In Swampy , the same court, six years earlier, dealt with the issue of moral culpability and proportionality. [ 89 ] At paras 24-25, the court states: “24.

The trial judge summarized the contents of the Gladue report. it is fair to assume that he considered it. His analysis was limited: “[t]aking into account the purpose and principles of sentencing and the evidence in this case, Mr. Swampy’s circumstances as an Aboriginal person does not justify any major departure from a proportionate sentence”. Swampy at para 51. 25. First, this analysis reveals an error in understanding the Gladue principles . As noted, the central purpose of the Gladue analysis is to achieve proportionality.

The first principle that a sentence must be proportional to the gravity of the offence and degree of responsibility of the offender has “… long been the central tenet of the sentencing process”: Ipeelee at para 36. The “ constrained circumstances of Aboriginal offenders may diminish their moral culpability” , as explained in Ipeelee at para 73. Reduced moral culpability must also affect the proportionality analysis, since moral culpability is one component of the equation.

It follows that where there is reduced moral culpability, there is a consequential reductive effect upon a fit and proper sentence: Ipeelee at para 87.” [ 90 ] As mentioned earlier in these reasons, the mental health of Bird and the diagnoses by Dr. Duska must also be considered. [ 91 ] In Ledesma , at para 37, the court states: “37. Ultimately, the balancing of factors in either direction must still result in a proportional sentence under s 718.1 of the Criminal Code .

The other five major principles of sentencing, in addition to the paramount principle of proportionality, are legality, rationality, individuality, parity and restraint. These principles are linked to (

a) the values of our overall legal system of equal justice under the rule of law, (

b) the objectives of the criminal justice system itself, (

c) concepts which have been developed by the courts or are sometimes expressed in legislation that are reasoning tools for the criminal justice system (often confused with principles because they exist to serve one or more principles) and (

d) factors in each case.

The six main principles are not in tension with each other (as such) but rather they inform each other in the application to a given case as parts of an harmonious statutory architecture: Friesen ; Parranto . ” The Voice of the Victim Must Also Be Heard [ 92 ] The criminal sentencing process in Canadian Courts generally focus on the offender, and to design a sentence that will comply with the sentencing sections set out in our Criminal Code . [ 93 ] It is important to also remember the interests of the victims of criminal conduct. [ 94 ] In the matter before me, the victims of Bird’s arson convictions were the homeowners – [ 95 ] Zoltan and Marie Lukacs at 1168 Varsity Estate Drive N.W., Graydon Glans their next door neighbour at 1166 Varsity Estate Drive N.W., and Remi and Rhonda Gravel at 1232 Varsity Estate Road N.W. [ 96 ] The Lukacs were 65 and 64 years of age. [ 97 ] The Glans had two young children, and at the time of the incident were expecting a third.

[ 98 ] The Gravels had a nine-year old daughter. [ 99 ]

Section 718 speaks to “harm done to victims” in subsections a, e and f. [ 100 ]

Section 718.2 mandates sentencing courts to take into consideration several principles, including “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation”. [ 101 ] Here, in reviewing the victims’ circumstances, the Court has had the benefit of two victim impact statements prepared in accordance with

section 722 of the Criminal Code . [ 102 ] Both address the impact on their lives as contemplated by the aforementioned legislation. [ 103 ] In the Lukacs’ statement, dated January 3, 2023, the following excerpts describe how Bird’s criminal conduct has impacted their lives: − “To say the events of May 18, 2022, changed our lives would be a gross understatement.

At 3:15 a.m. on that day, someone we didn’t know set our garden shed, located one foot from our house, on fire, and changed the trajectory of our lives”. − “Since that night our lives have been defined by stress, exhaustion, uncertainty, anger and to some extent, fear”. − “The financial losses we’ve incurred have been considerable. We are close to retirement, with a beautiful home to use as security in our later years.

The financial impact has put our retirement plans back years, as we struggle to recover lost employment income, and are faced with paying out of pocket expenses insurance will not cover”. − “The fire completely disrupted our work lives, with Zoli particularly affected.

His contracting hours as a mining consultant were drastically reduced since May 18”. − “His historical professional reference documents were paper-based, and most were destroyed by fire, smoke or water”. − “I have been employed for the past twenty years in a health-related educational setting and has taken a sabbatical leave of absence from her position as a therapy manager until June of 2023. She took great pride in her work and since the fire, felt unable to provide quality support to the staff and agency on top of dealing with moving, major insurance work and rebuilding a home.

This has also caused a significant financial loss and interruption of job continuity”. − “As time has passed, we are both still struggling to build back a sense of joy, as well as the motivation to be healthy and happy. Watching our home contents being thrown into big waste bins broke our hearts.

Marie sought professional support to deal with PTSD and insomnia resulting from this life-changing incident”. − “We look forward to returning to our home but with some trepidation, fearing the perpetrator will come back to the community”. − “The fire has impacted our lives in so many ways……the fire and subsequent fallout prevented Zoli from offering the care and support his mother deserved and his father needed. She passed away in October 2022, and Zoli has had to live with the guilt of not being there as much as he could have been”. − “Our 40 th wedding anniversary was just days before the fire.

Due to the financial losses and personal stresses, our plan for a 40 th wedding anniversary vacation in November 2022 was cancelled……. the stress is constant and unrelenting”. − “Frequent family gatherings and dinners with friends at our home no longer happen”. − “We feel alienated from our friends, as we are often overwhelmed and exhausted and don’t have the energy to put on a happy face and socialize”. − “Documenting 40 years’ worth of accumulated possessions and trying to assign a fair value to the items we lost for the insurance claim is ongoing, and exhausting”. − “Due to and insensitive and poor decision made by one person, we have spent months dealing with physical, emotional and financial challenges”. − “We are not wealthy, and our possessions do not represent significant financial value, however, our house was rich in memories and possessions were collected over 40 years of marriage”. − “We hope our stress and fear will subside and can only hope that someday we will be able to put this behind us”. [ 104 ] The Lukacs’ neighbour Graydon Glans, whose house suffered about $50,000 damage, filed a brief comment about how the criminal actions of Bird has affected himself and his family. − “My wife and I have two young kids and we were settled when our neighbor’s house went up in flames.

My wife was nine months pregnant at the time of the incident and lost considerable sleep and comfort following the fire. Including our toddler, we are all nervous about activity in our backyard now and feel an extra sense of discomfort and nervousness when we are in our home at night. − These feelings are amplified if one parent is home without the other.

Our house does not feel like a safe haven anymore and it may take a longtime before we stop double guessing sounds and activities surrounding our home”. [ 105 ] The Gravels have decided not to file a victim impact statement, even though their home has had to be rebuilt at an estimated cost of $700,000 dollars and a loss of contents with an estimated value of $120,000.

[ 106 ] It is, however, relevant that the Gravels had a nine-year old daughter living with them at the time of the fire. [ 107 ] There can be no question that Bird’s conduct – conduct for which there is no possible realistic or plausible explanation advanced for either arson offences – caused immense financial hardship, stress, fear and constant disruption to the victims’ lives and lifestyles. [ 108 ] In addition, Bird’s actions endangered the lives of the occupants in both situations, and I can only conclude that Bird was reckless in setting the fires.

Sentence [ 109 ] As mentioned earlier in these reasons, a conviction for arson carries a possible sentence of life imprisonment. [ 110 ] The Crown seeks a sentence of 6-7 years. [ 111 ] The Defence seeks a sentence of 5 years. [ 112 ] I acknowledge the principle of restraint, as well as the principles of proportionality and parity with crimes committed in similar circumstances. [ 113 ] I also acknowledge that due to Bird’s First Nation Aboriginal status, I must consider the factors as revealed in his Gladue report. [ 114 ] As the Alberta Court of Appeal stated in Ledesma , (supra) at paragraphs 55-62: “55.

The sentencing judge was aware of the appellant’s challenges, acknowledging his 2011 diagnosis of mild mental disability that likely impaired his general problem-solving skills and his ability to benefit from rehabilitative opportunities. She was aware of evidence of his paranoid and sometimes potentially delusional thought processes, largely arising in the context of substance abuse, which contributed to his suspicion and aggression toward others.” “56. But none of that diminished his moral culpability.

The facts of the crime itself almost suggest a certain casualness about the appellant’s inclination to do harm. Assuming that his conduct was actuated by mental disorder and not merely surrounded by it, the conviction for second degree murder remains unaltered and its circumstances remain as brutal as they were found to be. There is no evidential platform to find that the appellant lacked the mens rea for murder of Mr. Chiniquay. Any limitations in his intellectual capacity as may exist did not relate to his moral culpability in Chiniquay’s death, let alone reduce it.” “57.

As to his tragic background, and the Gladue factors, which likely damaged his entire outlook on life, the sentencing judge considered and enunciated these circumstances. but, as exemplified in Parranto , such factors are not per se and automatically dispositive. For example in Parranto , Brown J. wrote: “80. Against the gravity of the offence and these aggravating factors, this case also calls for consideration of Gladue principles. Despite being Metis, the record indicates that Mr. Parranto waived his right to a Gladue report and did not file a presentence report.

Even where a Gladue report is waived, however, courts must “Take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society”, including “such matters as the history of colonialism, displacement, and residential schools” ( Ipeelee , at para 60; Gladue , at para 83). Moreover, counsel made submissions indicating that that Mr. Parranto had a disjointed childhood surrounded by drugs, alcohol and abuse. He began using drugs in the 1990s and has struggled with addiction to heroin.

It was incumbent on the sentencing judge and the Court of Appeal to consider these circumstances in the context of the “broad systemic and background factors affecting Aboriginal people generally” ( Ipeelee , at paras 59-60). The offender is not required to show a “causal link between background factors and the commission of the current offence”, and Gladue principles must be applied in every case regardless of the seriousness of the offence ( Ipeelee , at paras 81 and 87.) In our view, Mr. Parranto’s background circumstances can be said to have played a

part in bringing him before the court. Against this must be weighed the reality that Mr. Parranto committed the second set of offences less than three months after being released on bail for the first set of offences. This suggests that restorative justice principles such as rehabilitation are less salient in this case compared to other objectives including protection of the public. [emphasis added]. “58. To be sure, Parranto is not authority for any proposition that if the crime is serious, the mere fact that there are relevant Gladue factors becomes irrelevant.

Rather, Parranto underscores that even for very serious crimes the lens through which a fit sentence is perceived includes setting for a vision of the Gladue factors. Nevertheless, it is also well established by the cases that 718.2(

e) of the Criminal Code does not create an automatic discount for Indigenous offenders unrelated to principles such as proportionality. Such Gladue factors as exist must still be “salient” to the ascertainment of a fit sentence. further, on issues of fact, the trial judge’s assessment is not substituted for on appeal: Compare R v B(AW) , 2018 ABCA 159 at para 35 , 71 Alta LR (7 th ) 90, leave denied

(2019) SCCA no 129 (QL) (SCC no 38604)”. [ 115 ] And further, at paragraph 61: “Similarly, the magnitude of the offence and its impact on not only the victims but society is also not automatically reduced by a tragic Indigenous background; compare R v Michelle , 2015 MBCA 6 , 315 Man. R(2d) 78; R v J(CJ), 2022 ABCA 190 (Alta CA), at para 33 . 43 Alta LR (7 th ) 1. We hasten to emphasize that all these cases are entirely comparable to the case at bar.

Rather, the point in this lengthy line of authority is that the objective of protection of the public or the magnitude of the offence may be such that they overcome any potential effect of Gladue considerations: see also Newborn .” [ 116 ] Taking into account that the two arson offences admitted by Bird occurred ten days apart, thereby not part of a crime “spree”,

the extreme danger placed by those actions to the residents of the houses, the very significant impact and harm that his actions had on the residents, the very high risk of recidivism on the part of Bird as revealed in the pre-sentence materials, the possibility for a double-digit sentence is realistic. [ 117 ] However, applying the sentencing principles of restraint and proportionality, I impose a global sentence for the two arson offences committed by the accused to seven years in a federal penitentiary, and three months concurrent for the credit card offence. [ 118 ] Turning to the three charges brought into the Court today, and agreed to have them dealt with concurrently with the two arson and single credit card offences, the following are the Docket numbers and circumstances of each. [ 119 ] Docket 190553412P1 – s 355(A) – Possession of stolen property valued over $5000.

The facts admitted by the accused are: − On 2019/05/03 at approximately 0042 hours, CPS in a marked police unit observed a stolen white Chrysler 300 (valued at $6,000) at the McDonald’s located at 6820 4 ST NW. CPS observed that the rear driver’s window was broken. The vehicle slowly drove away and parked in the parking lot of an apartment building located at 6803 Centre St. N. The driver/offender was last seen running on the north side of the apartment building towards Centre St.

Members on scene maintained their point of loss and waited for K9 to arrive. − Shortly after, K9 arrived on scene and conducted a track. A witness, Levi ERNST saw the police at the rear of his building with their lights and sirens on ERNST approached CPS stating that he had just saw and spoke with a male that was trying to get into the apartment building located at 6835 Centre St. N. ERNST told the police that the male had gone towards the fire hall. Cst Jacobson observed the male sitting next to the electrical box beside the fire hall at 68 AV x Centre ST.

K9 was effectively able to challenge the male to which he and was taken into CPS custody without incident at 0105 hours. The male was identified as the accused Dominik BIRD. [ 120 ] Docket 190634329P1 – s 355(B) – Possession of stolen property valued at less than $5000. The facts admitted by the accused are: − On 2019/05/08 at 01:20 hours police received a request for assistance for a black pickup truck that parked beside 45 Tuscany Ravine CR NW. The caller observed the vehicle alarm going off and possible three males in dark clothing walking away from the vehicle and on and off of neighboring homes lawns.

Police attended the scene at 01:37 hours, located the vehicle in question which was a 2012 Nissan Frontier (valued at $14,000) and found it to be stolen vehicle. At 01:42 hours police observed a male approaching the vehicle on a scooter; when close the male realized police were present, turned and fled down the street. Police located this male shortly after, hiding under a tree, and detained him. The male, identified as Dominik BIRD, had two sets of vehicle keys, both of which were able to start the vehicle in question. [ 121 ] Docket 190771097P1 – s 145(5) – Failure to attend Court (Docket appearance).

The facts admitted by the accused are that he did not appear as required, and that he had no lawful excuse for not doing so. [ 122 ] With respect to those three offences, for the s 355(

A) offence, I impose a sentence of 30 days to be served consecutively to the sentence imposed for the arson and credit card offences. [ 123 ] For the s 355(

B) offence, I impose a sentence of 30 days, to be served consecutively to the

section 355(

A) sentence, and consecutively to the sentences imposed for the arson and credit card offences. [ 124 ] For the s 145(5) offence, I impose a sentence of 15 days, to be served concurrently with the sentence imposed on the s 355(

B) offence. [ 125 ] The resulting total of the sentences imposed today is that the accused should be imprisoned for seven years plus 60 days, less any pre-sentence custody served prior to today. [ 126 ] I understand that counsel have calculated that pre-sentence custody to be 686 days. Accordingly, the seven years plus 60 days is reduced by 686 days, leaving a total of approximately 5 years plus 3 months left to serve. [ 127 ] In addition, there will be an order pursuant to s 487.04(

d) that the accused supply a sample of his DNA for registration in the national DNA data bank. [ 128 ] There will also be an order pursuant to s 109 that Bird be prohibited from possessing any firearm, cross-bow, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. [ 129 ] In view of the circumstances of the accused since the commission of these offences, there will be no Victim Surcharge imposed pursuant to s 737 of the Criminal Code . [ 130 ] I would like to express my appreciation to both Ms. Wells, who represented the Attorney General, and to Mr.

Flynn, who represented the accused for their diligence in these proceedings. Delivered orally on the 17 th day of January, 2024. Dated at the City of Calgary, Alberta this 19 th day of January, 2024.

B.C. Stevenson A Justice of the Alberta Court of Justice Appearances: Tara Wells for the Crown Patrick Flynn for the Accused