IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date:  20150918

Docket: 76767-4

Registry:
Nanaimo

Regina

v.

Leo Ronald Samual Touchie

Before:
The Honourable Mr. Justice Baird

Ban
on publication of any of the names listed in the victim impact letters,
pursuant to s. 486(3) C.C.C.

Oral Reasons for Judgment on Sentence

[1]
THE COURT: Leo Ronald Samual Touchie was charged with the second
degree murder of Mr. Harry Bickle on July 31, 2013, in Nanaimo. He
elected to be tried by a jury, and on Thursday, June 4, 2015, twelve of his
peers found Mr. Touchie not guilty of murder but guilty of manslaughter
contrary to s. 236 of the Criminal Code.

[2]
Mr. Touchie, your lawyer will have told you that there is no
minimum penalty for manslaughter. But the maximum penalty is life imprisonment.
The law permits a wide range of sentences for this offence, depending on the
aggravating and mitigating factors present, and the law recognizes that
manslaughter is committed in widely various circumstances, with a broad range
of moral culpability from one offender to another.

[3]
In rare cases involving near-accidental deaths and very special
circumstances where the moral culpability of the offender is at the lowest,
suspended sentences have been imposed: see R. v. Mintert, [1995] BCJ 652
(CA) at para. 20. But most cases fall within the period of four to 15 years,
and the Court of Appeal has clearly stated that sentences below or above that
range are to be imposed only in cases involving special circumstances: R. v
Green, [2001] BCJ 2434 (CA) at para. 10.

[4]
Mr. Touchie is entitled to special consideration because he is a 25-year-old
aboriginal male with no criminal record or any history of violent behaviour. Section 718.2(e)
of the Criminal Code requires me to pay particular attention to the
circumstances of aboriginal offenders, and the Supreme Court of Canada has
handed down clear instructions in R. v. Ipeelee, 2012 SCC 13 about
the manner in which that subsection is to be applied. This has produced a body
of jurisprudence leading to R. v. Pop, [2013] BCCA 160, in which
Madam Justice Bennett declared that the range of sentence for young aboriginal
offenders without prior records who commit manslaughter in aggravated
circumstances is between three and eight years imprisonment, with sentences of
one and ten years “at the outer ends”, presumably meaning in special
or exceptional circumstances.

[5]
My solemn task then, is to impose a just, fit and proportionate sentence
on Mr. Touchie within that range. It should be noted that, before perfecting a
bail order after his arrest, Mr. Touchie spent the equivalent of fifteen and a
half months in pretrial custody. The Crown is seeking a seven to eight year
sentence less pretrial custody. The defence has asked me either to credit Mr.
Touchie’s dead time and impose a penitentiary sentence of two years on top of
it, followed by three years of probation, or to impose a four-year sentence with
a deduction for pretrial custody.

[6]
A Gladue presentence report and a forensic psychiatric report
have been prepared for this sentencing, both of which have been marked as
exhibits, along with the victim impact statements written by Mr. Bickle’s
siblings and his niece. I will refer to these documents later.

Findings of Fact

[7]
First, I will set out the facts that I consider to have been essential
to the jury’s verdict. There is absolutely no doubt that this offender
inflicted a ferocious beating on the deceased that swiftly resulted in his
death. The violence of the attack was extreme and shocking. The consequences
were catastrophic. Mr. Bickle is dead, Mr. Touchie, and you killed him. It is a
monstrous and deplorable thing to rob another person of the natural course of
his years, wherever they might have taken him. You have deprived Mr. Bickle’s
family of a beloved relative and have left them to struggle with an acute sense
of loss and bereavement that will likely be years in abating.

[8]
You explained your motivations to the jury, alcohol addled as they were,
to the effect that you attacked Mr. Bickle because you found him in the
midst of sexually assaulting a woman, Rita White, and you became unhinged in
anger because you, yourself, had been sexually abused as a child, you had
witnessed your siblings being sexually abused, and on countless occasions, you
had witnessed vulnerable women being assaulted and abused by men in your own
home and social milieu. The fury that rapidly escalated in you went unchecked
because of the disinhibiting effect of advanced alcoholic intoxication, and the
combination of these factors lead to an excess of violence that you now realize
was totally disproportionate, wrong, and unjustified.

[9]
I pause here to note that I view it as a significant mitigating factor
that, before the trial, you made an offer, which was rejected for perfectly good,
sound reasons by Mr. Van Alstine, to plead guilty to manslaughter. I
acknowledge the truth of your lawyer’s observation yesterday, that you
instructed him to run this case briefly in an efficient and cost-effective manner.
Your lawyer has characterized the trial as sort of a long guilty plea, and I
think that is a fair enough assessment.

[10]
I also accept, Mr. Touchie, that you are genuinely remorseful for your
disastrous misconduct on July 31, 2013. You now realize the gravity of the
wrong that you have committed. You are only 25 years old and you have no record.
I will discuss your personal and cultural history more in a moment. For now I
will say that despite what can only be described as a chaotic, dislocated, and
poverty-stricken background blighted by neglect, sexual and physical abuse both
on yourself and family members, and by a long history of substance abuse by you
as well as those around you, you have completed high school, you have a
reasonably good history of employment, and you have no criminal record. I will
say right now that I consider these to be remarkable and strong mitigating
factors

[11]
On the aggravating side of the equation, I am here to tell you that as a
matter of law, as a matter of basic morality, your explanation for your conduct
notwithstanding, the ruinous force with which you pummelled Harry Bickle was
excessive and wholly unjustifiable. You showered him with blows and kicks. You
fractured his orbital bone. You stomped on his chest repeatedly. You broke most
of his ribs. The beating was sustained and brutal. Mr. Bickle died from
repetitive blunt trauma injury. You abandoned him to his fate and summoned no
help, although I think it clear on the evidence that you did not consider that
he might need any. I also note that Dean White, Mr. Bickle’s friend who
witnessed the incident, obviously came to the same conclusion. It probably had a
lot to do with how drunk you both were.

[12]
I also take into account your behaviour the following day. You sent text
messages to your friend Ms. Empey in which you said that you continued to be
angry and wished you could go back and beat Mr. Bickle again. You bragged about
the violence you had inflicted on him.

[13]
I want you to reflect on the fact that Mr. Bickle was himself an
aboriginal male and, I am prepared to infer, a person whose own life was badly damaged
by the legacy of colonialism, displacement and cultural deracination referred
to in Ipeelee, the same legacy that the law requires me to consider in
measuring the degree of your moral responsibility for killing him, and because
of which I am mandated by law to exercise restraint in punishing you.

[14]
Mr. Bickle was a man of some 52-years of age. The autopsy report,
as well as anecdotal evidence given by witnesses at trial, including his friends
Susan Klaws and Dean White, clearly imply that Mr. Bickle’s health had been
ravaged by years of alcohol abuse. He was a person of diminutive stature who
was terribly drunk and totally defenceless at the time you attacked him. You,
by contrast, are a large, strong-looking and healthy young man. Mr. Bickle
never stood a chance. The sheer lop-sidedness of the violence, as far as I am
concerned, is a potent aggravating factor.

[15]
The jury heard evidence that during the afternoon and evening of
July 30, 2013, and into the wee hours of the morning of July 31,
2013, you had been drinking heavily with Dean and Rita White, who are siblings.
Dean White was Mr. Bickle’s long-time friend and roommate. You met these
people by coincidence at a local beach and fell to socializing and drinking
with them. Part of what brought you together was the task, performed jointly,
of removing to higher ground an unknown female person who had passed out from alcohol
consumption below the tide line. Later in the evening, the three of you came
into town and the drinking continued in the basement suite on Haliburton Street
that Mr. White shared with Mr. Bickle. You had never met Mr. Bickle
before. You did not know the first thing about him.

[16]
Sometime around 3:00 a.m., Dean White left the apartment to check on the
well-being of the passed-out woman at the beach. While he was gone, you and Mr. Bickle
remained in the apartment and continued drinking and socializing in the kitchen
area. You were heavily intoxicated by this time, while Ms. White had
passed out from excessive alcohol consumption and was lying comatose on a couch
a few steps away. Up to this point there was not a shred of evidence of any bad
blood, contention or hostility between you and Mr. Bickle.

[17]
But then you went outside to have a cigarette, and when you returned,
you discovered that Mr. Bickle was in the midst of sexually assaulting
Ms. White. He had taken off her clothes below the waist, and was kneeling
over her, with his head between her legs near to her exposed vagina. Just as
you were absorbing the shock of seeing this, Dean White returned to the
apartment. He saw the same thing. He rushed over to Mr. Bickle and said,
“What are you doing?  She’s passed out.”  He pushed Mr. Bickle to the
floor and attended to his sister. Already enraged, I infer, you asked “Is that
all you’re going to do?”, and you attacked Mr. Bickle in the manner already
described.

[18]
You admitted to the jury, Mr. Touchie, that you had gone too far. You
told them that Mr. Bickle did not deserve to be so severely beaten and he
certainly did not deserve to die. But you said, essentially, that the sharp
emotional upset that you experienced on seeing what Mr. Bickle was doing
to Rita White set you off in a rage that was rendered uncontrollable by alcohol
impairment. You did not measure the force you were using or consider the consequences.
Your motivation, you said, was to force Mr. Bickle to confess that he was
a rapist and to punish him for it. You became angrier and angrier every time Mr. Bickle
denied that he had done anything wrong. At one point, Dean White, who was
obviously astonished by the suddenness and severity of your violent reaction,
heard you say “I don’t care if I get six months for this.”

[19]
As I have already said, you were drunk at the time. Over the preceding hours,
you had consumed a number of vodka coolers, six or more tins of beer, and the
lion’s share of two bottles of rye whiskey. As for Mr. Bickle, his autopsy
blood analyzed at 323 milligrams of alcohol in 100 millilitres of
blood. That is over four times the legal limit for operating a motor vehicle.
You will remember Melanie Brisson, the RCMP toxicologist, who testified that
the effect on Mr. Bickle would have been severe intoxication. This would
have been characterized by significant deterioration of his motor control and
physical coordination, tripping, fumbling, balance problems, slurred speech,
grossly impaired cognitive processes, and confused thinking. By his own
admission, Dean White was also extremely drunk, and I have already noted that
Rita White had rendered herself completely unconscious with drink. Overall, the
evidence creates the picture of a grossly dysfunctional, poisonous and
disastrous alcoholic fiasco whose particulars are woeful to contemplate and
whose results were fatal.

[20]
For the record then, I find as a fact Mr. Bickle was, indeed, in the
midst of sexually assaulting Ms. White when you came back inside the
residence from having your smoke. I say so particularly because I have the uncontested
corroborative evidence of Dean White about it. I accept his testimony. Rita
White was in no condition whatsoever to consent to sexual activity, and Mr. Bickle’s
drunkenness does not alter the fact that what he was doing was very wrong and
wholly unlawful. I find that this is what kick-started your anger and led you to
resort immediately to extreme violence. I think it obvious that the jury accepted,
as I do, that you were provoked by this unlawful act, that the provocation was
sudden, and that you reacted violently and excessively before your passions had
cooled. I haven’t the slightest doubt that your catastrophic reaction was
enabled by voluntary and advanced alcoholic intoxication, and that this
combination of provocation and drunkenness was what led the jury to doubt that
you intended to murder Mr. Bickle or possessed the subjective foresight that
your acts would cause his death.

The Principles of Sentencing

[21]
The fundamental purpose of sentencing is to contribute to respect for
the law and the maintenance of a just, peaceful and safe society by imposing
just sanctions for criminal misconduct. The goals of our sentencing laws
include:  to denounce unlawful conduct; to deter criminal offending; to
separate offenders from society where necessary; to assist in rehabilitating
offenders; to provide reparations for harm done to victims and to the community;
and to promote a sense of responsibility in offenders.

[22]
The fundamental principle of sentencing is that punishment must be
proportionate to the gravity of the offence and the degree of responsibility of
the offender. This is called the principle of proportionality. Also, a sentence
in a given case should be similar to sentences imposed on similar offenders for
similar offences committed in similar circumstances. This is called the
principle of parity, and it was in order to allow me to serve this principle
that the lawyers yesterday referred me to an array of precedent cases.

[23]
Our sentencing laws, Mr. Touchie, also mandate that offenders
should be not be deprived of liberty if less restrictive sanctions may be
appropriate in the circumstances. This spirit of restraint is not limited to
the imposition of jail sentences. Our laws and traditions require generally
that in the absence of minimum mandatory penalties, harsher punishments should
be avoided if less drastic measures would satisfy the principles of sentencing
and do justice in a given case. The law’s retribution for criminal misconduct
is limited to an objective, reasoned and measured determination of an
appropriate punishment, having regard to the gravity of the offence, the moral
culpability of the offender, the consequential harm caused to the victim and
the community, and the extent of the offender’s departure from normative
standards of community conduct.

[24]
The principle of restraint is especially emphasized in s. 718.2(e)
of the Criminal Code in relation to aboriginal offenders like yourself. I
am instructed by the Supreme Court in Ipeelee that I must take judicial
notice of the history of colonialism, displacement, and residential schools,
and how that history continues to translate into lower educational attainment,
lower incomes, higher unemployment, higher rates of substance abuse and
suicide, higher rates of conflict with law enforcement, and higher levels of
incarceration for aboriginal people right across this country. As I mentioned
yesterday, I am fully persuaded that your progress through life has been sadly
and directly compromised by the effects of this unhappy history which, for the
reasons that I am going to attempt to explain in this judgment, I find to have
materially impacted the degree of your moral culpability in committing the
present offence.

Gladue/Ipeelee Factors

[25]
Mr. Touchie is a full status member of the Uchucklesaht Nation, people
who have lived on Vancouver Island since time immemorial. The Gladue
presentence report contains the following information:

Like many indigenous communities, the Uchucklesaht people
suffered the effects of colonization and the residential school system. Their
population was decimated from warfare and the introduction of European
diseases.

Additionally, European settlers imposed stringent
assimilationist policies aimed at the eradication of indigenous culture. To
this end, the Canadian government endorsed residential schools, whose primary
objective was to assimilate indigenous people into European society. The
intention of the schools was to eradicate First Nation culture and language and
to break First Nations children’s bonds with their families, communities and
cultures. Children were forcibly removed from their homes. Parents were fined
or jailed if they attempted to interfere. The schools segregated boys and
girls, and siblings were separated from one another, which further undermined
family bonds.

The residential school system has had a multigenerational
impact on families. Survivors were often away from their families for long
periods of time and were unable to learn valuable life and parenting skills. Many
survivors adopted the abusive behaviours that they learned at school or passed
on the trauma they experienced from their generation to the next.

As a result, indigenous people
suffered a significant loss of their native languages, cultural identities and
social relations. Indigenous people have higher rates of teen pregnancy,
unemployment, poverty, alcoholism and suicide.

[26]
Mr. Touchie’s family has been directly affected by this legacy. His grandmother
attended the residential school at Port Alberni where, according to the reports,
she was subjected to medical testing, violence and sexual abuse. I find
expressly that this institutionalized abuse and cruelty has had a ripple effect
down the generations of Mr. Touchie’s family. His mother has a history of
substance abuse and bad relationships, including a six-year liaison, while
Mr. Touchie was very young, with a violent partner who was prone to
extreme abuse of their mother which Mr. Touchie and his younger siblings
were often forced to witness. For a time, the family had to hide in a police
safe house to get away from this person who was stalking them. During the same
period, to make an already desperate and intolerable situation far worse,
Mr. Touchie was sexually abused by a male relative, and he experienced the
anguish and powerlessness of seeing his younger siblings being victimized by
the same person in the same way without being able to do anything about it.

[27]
Treading a path already well-worn by thousands of his aboriginal brothers
and sisters before him, and as a direct result of this combination of toxic
factors in his personal life and background, Mr. Touchie, in his turn,
became submerged in a downward spiral of substance abuse, anger and
self-destructive behaviour. While these factors, Mr. Touchie, cannot and
do not excuse the beating death of Mr. Harry Bickle, nevertheless they
deserve a strong measure of pity and of sympathy, and they are to be given the
special attention referred to in 718.2(e) in measuring the extent of your moral
blameworthiness for this offence.

[28]
The laws of this country recognize, quite simply, that because of their
unique experiences, challenges, afflictions and difficulties rooted in
ruinously misguided public policy over many decades, aboriginal offenders are
different from non-aboriginal offenders, and that special care must be taken in
sentencing every aboriginal offender, regardless of the seriousness of the
charge, to give real force to the remedial effect of s. 718.2(e): R. v.
Jacko, [2010] ONCA 452 at para. 59.

The Psychiatric Report

[29]
A psychiatrist from adult forensics evaluated Mr. Touchie for this
sentencing and submitted a report which I have read repeatedly. This report
confirms that Mr. Touchie has a significant history of substance abuse,
self-destructive behaviour and anger management problems arising from a history
of trauma in his past, including verbal, sexual and physical abuse by adults
when he was a child. The report also referred to vicarious trauma experienced
by Mr. Touchie from being forced to witness the physical and sexual abuse
of his younger siblings and other female family members, including his
grandmother, his mother and his aunties.

[30]
The psychiatrist reported that Mr. Touchie appeared to be genuinely
remorseful for his offence, but he went on to say that the underlying issues
that drove him to commit it remain untreated and unresolved. The report
concluded that Mr. Touchie will require extensive counselling and treatment,
combined with abstinence from substances, in the absence of which he will pose
a moderate risk to reoffend.

[31]
The psychiatric report contained a great deal of extremely revealing
information received from Mr. Touchie’s mother, who was raised, as I have
already said, by a residential school survivor. She described a difficult
upbringing characterized by chronic alcohol and drug abuse, and sexual abuse of
children in her family and other children residing on the Uchucklesaht reservation
where she lived. She recalled being sexually abused by various male family
members, including her stepfather, uncles, and a brother-in-law. Her biological
father spent eight years in prison for sexually abusing her siblings. She
reported that by the time she was an adolescent, she thought it was normal to
have experienced sexual abuse, as almost all the children she knew had been
victimized by it. Despite informing her mother of these assaults, a number of
the men who sexually abused her remained in their family life and spent a lot
of time with their mother. She also spoke of intergenerational abuse, meaning
abuse by men who had abused her and her siblings who went on to abuse her own
children and her siblings’ children.

[32]
Mrs. Touchie reported that she got married young, hoping that this
would be her ticket out of her family home and away from the abuse that she had
always experienced there. She confirmed the grim pathology of failed and
violent relationships that she endured one after the other while Mr. Touchie
was young. She reported that the family has always been horribly poor and that
they moved around a lot, making it difficult for Mr. Touchie to form proper
friendships or to pursue a coherent course of instruction at school. Thankfully,
she is now married to a person who treats her with respect and whom Mr. Touchie
has described as the only positive male influence that he has ever had in his
life.

[33]
The psychological report concluded that Mr. Touchie presented with
significant issues of anger, resentment, guilt and trauma associated with this
long history of abuse including sexual abuse and the abuse of his family
members. The report writer summarised: “Mr. Touchie’s long-standing rage at
those who committed offences against him and his family came to the surface
when he witnessed the sexual abuse of Ms. White, and he lashed out physically
against Mr. Bickle who, as far as he was concerned, was like the man who had
abused him and his family members.”

Aggravating Factors

[34]
The aggravating factors in this case, Mr. Touchie, will be obvious
to you. They include the protracted nature of the beating, the weakness and
vulnerability of the victim, the level of anger of which you became capable
while heavily intoxicated and your total inability, when it came to it, to
control it, even after Ms. White had been removed from harm’s way. There was your
ongoing anger and bragging the following day, of course, and the psychiatrist’s
opinion that you represent a moderate risk to offend if you do not address your
addictions and anger.

Mitigating Factors

[35]
The mitigating factors are that you are still a young man. You were only
23 when this happened; you are only 25 now. You do not have any criminal record,
as I have already said. You are obviously and sincerely remorseful for what you
have done. You made an early offer to plead guilty. Despite your horrible personal
circumstances and background, you have managed to graduate from high school, which
I think, quite frankly, given what you have been through, is a miracle, and I
commend you in the highest possible terms for it.

[36]
You have a reasonably solid history of employment. You have the strong
support of your family and friends. You have quit drinking and taking drugs
since your arrest. During your period of pretrial custody, you took advantage
of counselling and improvement opportunities, and you successfully completed a
number of programs. You finished high school, you took and successfully
completed a respectful relationships program, a violence prevention program, a
mindfulness program, and a substance abuse management program. There wasn’t a
single behavioural infraction recorded while you were in custody.

[37]
I perceive, in other words, that when given opportunities to better
yourself, and to develop insight to help yourself, you seize those
opportunities with both hands, and that makes me optimistic about what is going
to happen to you long-term, and what the future is likely to hold for the rest
of us, who will be living with you in the same community.

[38]
Since your release, furthermore, you have been on bail. The terms have
been reasonably restrictive. There were a variety of strictures on your
personal freedoms, and I gather that in the entire time you have been on bail you
have never breached. That, as well, tells me that you are capable of taking
instruction, of disciplining yourself, of complying with corrections, of doing
the right thing.

Victim Impact

[39]
Mr. Bickle is gone and no one will hear from him ever again. He should
not have assaulted Ms. White, but as you now recognise this did not merit the
severity of your response. Your crime has had a very significant impact on Mr. Bickle’s
family. I have victim impact statements from his brother C.B., his sister
K.B., and his niece A.B. Here are some of the things that they had to say. I am
going to read them into the record because I think you and everyone else here
today should hear them.

[40]
C.B. said:

I don’t know where to start. This vicious crime towards my
only brother has been the hardest thing I’ve ever endured in my life. It is
almost the anniversary date of his death, but I still feel like it was
yesterday. I’ve been hugely impacted by this criminal incident. A significant
portion of my life has been stolen from me. I’ve lost my brother and my best
friend.

We lived together, worked together, shared lots of quality
times together. We laughed together, played sports together and cried together.
Certainly we had our differences about certain things in life, but now we can’t
even discuss those differences.

Harry was my older brother. He protected me and he influenced
me. He was a good influence. He didn’t care about material things, and he’d
give his last penny and food to persons more needy than he. My brother really
cared about me. Regardless of what I’d done or what new item I wanted to show
off, he’d genuinely express an interest. He was happy for my accomplishments,
and he was happy to talk about his younger brother to everyone.

This incident has left me emotionally drained.

I hide my feelings with humour, but I need to deal with
what’s going on emotionally and mentally. These are tough and sensitive issues
for me to address. I never want to go through this again.

Not only has this crime taken
away a brother, this crime has taken away a father who was loved, which has
left his son homeless, lonely and dislocated. This crime has taken away an
uncle who was loved by his nieces and nephews, who are also suffering with
their grief at the loss of their beloved uncle who had an impact on his family
with his humour and comments.

[41]
K.B. said:

The day I got the phone call, just over a year ago, it turns
your world upside down. When a person dies of natural causes, you can work
through that, but when your brother has been unlawfully killed, you can’t
comprehend that. The chain of events that happen after you hear that word is a
total train wreck.

What kind of human being does
this to someone. I’ll never understand this. I’ve known my brother all my life.
He’d never hurt a fly. I always believed we’d all grow old together, but Harry
was left without this choice, and now our lives are changed forever. He can’t
call me; I can’t call him. There will be no more Christmases, no more birthdays,
no more family gatherings. All we have is our memories. My brother won’t see
the light of another day. We are all victims left behind. And our lives will
never be the same.

[42]
Mr. Bickle’s niece A.B. said:

It’s been a year since I lost my Uncle Harry. It doesn’t seem
like a long time, but 365 days of not seeing him feels like forever. And I
still have the rest of my life of never seeing him again to get through as I’m
only 21 years old.

We’ll never get to see him again, he’ll never be a part of my
children’s lives, he won’t be at my wedding, he won’t be at any holidays or
family events. He will miss everything that’s important to our family. We can
no longer create memories that involve him.

Harry was one of the funniest,
happiest people I’ve ever known. You can ask anyone. He would light up a room
full of people, always made everybody laugh.

[43]
These statements were filed in the record. I do not know if the lawyers
expected me to read from them. But I think it is important that you should hear
what Mr. Bickle meant to his family and know about the hurt that you have
inflicted on them.

Case Authorities

[44]
Counsel have referred me to an array of authorities that confirm the
range of sentence articulated by Madam Justice Bennett in Pop. In my
view, the lower end of the range is delineated by Regina v. Jack, 2008
BCCA 437, a case that bears a certain similarity to the facts at bar and whose
example I intend to follow. It was an appeal from a sentence imposed by the
late Judge Josiah Wood, who finished his illustrious and varied career in the
law as member of the Provincial Court of British Columbia in Duncan, a
community just down the road from where I’m sitting right now.

[45]
Mr. Jack was a 24-year old aboriginal offender. He beat his victim
to death because of a rumour that the victim had physically abused his spouse,
who was related to Mr. Jack by marriage. There was discussion amongst various
family members that the victim deserved a beating. One night the accused and
two younger females, all three of whom were drunk and agitated, lured the
victim out of his house on a pretext, and as soon as he came out, Mr. Jack set
on him.

[46]
Judge Wood found that Jack was the main aggressor and that a savage
beating was laid on the victim of a magnitude similar to the present case. The
cause of death was blunt trauma injury. The victim’s sternum and all of his
ribs were fractured. His pericardium was ruptured as was his left pulmonary
vein. The muscle of his heart wall was torn. The reporting pathologist described
the injuries as akin to those that he would expect to see after a fall from a
great height or a serious motor vehicle accident.

[47]
Mr. Jack had a history of substance abuse but no criminal record. Judge
Wood’s summary of his personal background contained nothing like the history of
harrowing injuries and insults that Mr. Touchie has had to endure on his
way through life. Mr. Jack had quit abusing substances, like Mr. Touchie
has. He had the support of his friends and family, like Mr. Touchie has. He
had expressed remorse and taken positive steps to improve himself and remain
clean, as Mr. Touchie has. There was a strong element of premeditation in
the Jack case that is absent from Mr. Touchie’s case. The sentence
imposed by Judge Wood, may he rest in peace, was one of three years, and this
sentence was upheld on appeal.

[48]
I also found the facts in Pop to be instructive. That case
involved a 21 year old aboriginal male with no record. After a drunken argument
with the victim, the accused and his brother stabbed the victim 34 times and
killed him. I would note that this offence involved a deadly weapon, and more
severe and obviously lethal violence than in the present case. The accused had
been neglected, abused and abandoned as a child and had a serious alcohol
addiction. There was a long multi-generational history of alcoholism and
familial abuse in the accused’s family. The trial judge also found that that
despite tremendous challenges, the accused had completed grade 11 and received
some training in the construction trades.

[49]
The trial judge imposed a sentence of two years less one day on top of
three years and two months pretrial custody, for a total effective jail
sentence of 5 years and 2 months, with three years of probation to follow. Madam
Justice Bennett found this sentence to be demonstrably unfit. The trial judge
had not placed enough emphasis on the mitigating factors (youth, no record,
remorse, insight into his substance abuse and willingness to take treatment for
it) or taken proper account of the offender’s aboriginal background. The
sentence was reduced by one year, to an effective sentence 4 years and 2
months.

[50]
I would also make reference to R. v. Peters, 2014 BCSC 1009,
in which a 50-year old aboriginal male received a 4.5-year sentence for stabbing
his wife to death. His parents were residential school survivors. His siblings
were all alcoholics or ex-alcoholics. He was so drunk at the time of committing
the offence that he did not remember anything about it. He had a significant
criminal record, which Mr. Touchie does not, and spousal violence was a
significant aggravating factor that is not present here.

[51]
Crown counsel have cited a number of authorities involving
non-aboriginal offenders which I have found to be of limited assistance, given the
centrality on this sentencing of Mr. Touchie’s aboriginal culture and
background required by s. 718.2(e) of the Criminal Code, and the
logical corollary that, in measuring the principle of parity, one should look
primarily to cases involving similarly situated aboriginal people who have
committed similar offences.

[52]
I have carefully considered, as well, a number of cases, including R. v.
Neel, 2014 BCSC 1989 and R. v. Johnny, 2015 BCSC 615 in which
longer sentences have been imposed upon first-time aboriginal offenders for
manslaughter. But sentencing is a highly individualized process, and I have
concluded that the eight year sentences handed down in both of those cases
would be disproportionate and unfit for Mr. Touchie. I am not going to impose a
sentence of that length.

Sentence

[53]
Stand up, please, Mr. Touchie.

[54]
In all of the circumstances of this tragic case; giving due emphasis to
the preeminent goals of sentencing that apply, namely deterrence, denunciation,
and rehabilitation; and paying particular attention to Mr. Touchie’s
aboriginal background, which I consider to have played a substantial role in
limiting the extent to which he is morally culpable for the crime which he has
committed, I have decided that the overall objectives of sentencing, to
encourage respect for the law, and to maintain a just, peaceful and safe
society, will best be served by a further sentence of two years in a federal
penitentiary followed by three years of probation.

[55]
In combination with your fifteen and a half months of pretrial
incarceration, this two year sentence will mean that the total custodial
penalty for your wrongdoing will be three years and three and a half months.
The addition of the maximum period of probation permitted by law will assure
that, by the time you have completed your sentence, you will have been in
prison, on parole, or on probation for just over six years. I perceive that
that this mixture of punitive and rehabilitative elements to your sentence will
best satisfy the principles to which I have referred including, especially, the
remedial provision contained in section 718.2(e), and will best guarantee your
future safe conduct in our community.

[56]
I want there to be lengthy period of probation during which you will be under
the supervision of community corrections, so that your recovery, your
rehabilitation, can be monitored and your improvement can be strengthened,
leading to your success. The best way of securing long-term public safety is to
make sure that you are rehabilitated, cured, rendered healthy and whole, and are
able to function in society without posing a danger to anybody.

[57]
The terms and conditions of your probation will be as follows:

[58]
Within 72 hours of your release, you are to report to the probation
office nearest to the place of your release, and thereafter as directed.

[59]
You are to keep the peace and be of good behaviour. You are to report to
court when required to do so by the court.

[60]
You are to advise your probation officer of your residential address,
and you are not change that address without notifying the probation officer in
advance.

[61]
At the direction of your probation officer, you are to take and
successfully complete any counselling or treatment, including for anger
management and substance abuse, and including residential treatment if directed.
In other words, if you are told to go and do something by way of counselling,
you go, Mr. Touchie, and you leap in with both feet and you do as you are
told and you successfully complete the program.

[62]
At the direction of your probation officer, if acceptable to the Bickle
family, you are to participate in and successfully complete any program of
restorative justice that your probation officer might devise. The Bickle family
may not be interested in such a thing, but you have told me that the
opportunity is something that you would welcome, and I expect you to follow
through if the opportunity ever arises.

[63]
During the entire duration of your probationary period, you are not to
consume any alcohol whatsoever. You are furthermore not to possess or to
consume any non-prescription drug or substance banned by the Controlled
Drugs and Substances Act of this country, except if you are in possession
of a prescription for such a substance issued by a properly licenced physician
in the Province of British Columbia.

[64]
You are furthermore not to be found in any bar, nightclub, tavern or
other place whose principal business is the sale of alcohol.

[Ancillary orders spoken to]

[65]
Mr. Touchie, you are to be taken away now.

“Baird
J.”