



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Johnny,









2011 BCCA 25




Date: 20110120

Docket: CA037577

Between:

Regina

Respondent

And

Kyle Johnny

Appellant




Before:



The Honourable Mr. Justice Hall





The Honourable Madam Justice Levine





The Honourable Mr. Justice Tysoe




On appeal from the
Supreme Court of British Columbia, October 6, 2009,
(
R. v. Kyle Johnny
, Smithers Registry No. 8152-1; and
R. v. Kyle
Dennis Johnny
, Smithers Registry Nos. 8152-2-A, 20758-1, 20758-2-A and
21123-1)

Oral Reasons for Judgment




Counsel for the Appellant:



K.R. Beatch and R.
  Thirkell





Counsel for the (Crown) Respondent:



M. Mereigh





Place and Date of Hearing:



Vancouver, British
  Columbia

January 19, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 20, 2011








[1]

HALL J.A.
: The appellant, who will be 28 years old in April of
this year, is of aboriginal background. A brief history of his unhappy
background was given by Justice Josephson as part of his reasons for sentence
in the case of
R. v. Edwards
, et al, [2001] B.C.J. No. 1062:

13.

Kyle Johnny, now
eighteen years old, was raised on a reserve near Chase and in various
surrounding communities. The residential school system also had significant
impact on his family. While he was exposed to alcohol abuse and violence, his
childhood was relatively benign. He was not a victim of abuse as a child. He
suffers from attention deficit hyperactivity disorder. There were significant
disruptions in home and school placements. At age eleven or twelve years, he
began abusing alcohol, associating with negative peers and engaging in
aggression. Four or five months of foster care at that time due to behavioural
problems saw no improvement in his behaviour. His mother is well educated,
articulate and strongly supportive of Mr. Johnny. Her band is prepared to
offer an apparently well thought out and professional program of counselling
and treatment.

[2]

He is presently imprisoned in a Federal institution as a result of being
sentenced for a number of crimes on October 6, 2009, after credit for
pre-sentence custody on a two-for-one basis, to a sentence of 10 years and 9½
months. The sentences were imposed by a Provincial Court judge in relation to
seven charges to which the appellant had pleaded guilty. The time period covered
by the charges was from December 8, 2008 to May 27, 2009.

[3]

The chronology of the several incidents for which he was sentenced
commences on December 8, 2008. On that date he turned himself in to the police
detachment in Smithers, at which time he was found to be in possession of a
small amount of cocaine. It seems that he was then apprehensive as to his
safety because of a possible threat of retaliation from others in the cocaine
trade because he considered he had not satisfied certain obligations from
dealing in cocaine. However, at a later time, in a discussion with a probation
officer, he seemed to suggest that he turned himself in because he wanted to
get himself off the street and away from a drug problem. It is not entirely
clear if he remained in custody thereafter until January 22, 2009, but on this
latter date he was in court and was thereafter at liberty on a promise to
appear.

[4]

On March 8 he was involved in an altercation with a person named Cote at
Burns Lake which resulted in a charge of aggravated assault. The victim was in
a coma as a result of this assault and was on life support in Prince George
hospital for a time. The appellant was released again soon after his appearance
on this charge on an undertaking to appear. He was found committing bail
breaches at the end of March and beginning of April by using alcohol but
remained out of custody. Late in April, he failed to appear for a court date. That
resulted in a failure to appear charge, one of the charges for which he was
sentenced. On May 27, 2009, at Smithers he was involved in a serious incident
which resulted in his being detained in custody until he was sentenced in
October 2009. On this date he committed a violent robbery of a jewellery store.
A clerk and an 81 year old customer were assaulted in the course of the
incident. His detention in custody resulted in a credit for time served before
sentencing of some 260 days, being 130 days at two-for-one credit.

[5]

It was apparently intended that the sentencing court would have a
pre-sentence report before it as sentencing on the several charges to which he
had pleaded guilty was scheduled for the latter half of October 2009. However,
counsel for the appellant had the case called forward, apparently at the behest
of the appellant, who expressed concerns for his safety and sought to be
sentenced forthwith. The sentencing proceeded before the Honourable Judge
Struyk on October 6, 2009. At the sentencing, the Judge gave a brief
description of the facts underlying the aggravated assault charge:

[6]        ... At some point around the date of the alleged
offence, March 8, 2009, there was a confrontation between Mr. Johnny and
Mr. Cote, and Mr. Johnny struck Mr. Cote in the head area. It is
not certain as to how often that occurred as some of the admissions made by
Mr. Johnny were not clear on that, that is, the frequency of blows, but as
a result of that, it is understood that Mr. Cote then struck his head on
something else and had a severe injury in the way of an intracranial or a
closed head injury.

[7]        There were noted to be no defensive injuries on
Mr. Cotes person. Perhaps some of the notable factors here are that
Mr. Johnny then became involved in making sure that Mr. Cote was
delivered to the hospital to receive medical care, though Mr. Johnny did not
stay at the hospital. He left that location in Burns Lake and, on a later date,
after learning the police were looking for him, turned himself over to the
police ... .

[6]

The judge made reference to the results of the aggravated assault upon
the victim, a father of five young children, and his relatives:

[23]      With respect to the aggravated assault, I have
reviewed the victim impact statements of Robert Cote, the father, and Barb
Cote, the mother, who I understand are retired and upon whom a significant care
burden has now been placed with respect to Randall Cote. I also note that there
is a victim impact statement from Randall Cote himself.

[24]      I have reviewed all the medical reports that have
been filed, particularly the report which is filed as Exhibit 6, that of Karin
Frank, the occupational therapist, who notes there has been some improvement in
Mr. Cotes condition. According to that report:

[He] is walking independently
without any aids ... and is able to feed and dress himself independently. He
also carries out all his personal care without assistance. His balance has
improved greatly ... Mr. Cotes speech is affected greatly. He is able to
have meaningful conversations, but his diction makes it difficult to understand
him. He makes phone calls, keeps appointments and is able to express his needs.
[He does suffer] from some degree of retrograde amnesia and is not able to
recall the time he spent in hospital directly after the injury. He doesnt use
public transport and has to rely on his parents for transportation, as he is
unable to drive a car.

Mr. Cotes quality of life was greatly compromised by
his acquired brain injury. He will never fully recover to his formal level of
functioning, but I expect there will be some improvement made on the quality of
his speech, his community involvement and social networking following his
intensive rehabilitation in Halvar Jonson Rehabilitation Centre [which I
understand is where he was accepted for further rehabilitation in Alberta].

[25]      Exhibit 4, that is the report of Dr. Fourie,
indicates that Mr. Cote has a pervasive cognitive deficit at this time. His
communication is very limited.  He goes on to say:

He will be dependent on third party
care the rest of his life.

The doctor went on to say:

I cannot ever see him living independently again. We think
he has plateaued and we dont think we are going to see any drastic
improvements in the next six to twelve months.

[7]

The judge thereafter set out the circumstances of the robbery:

[10]      ... Mr. Johnny
attended to a jewellery store in Smithers during normal business hours and
proceeded to smash the jewellery cases, to access jewellery. As I understand
it, he managed to get some jewellery into a bag or backpack that he had with
him. He had a hammer in his possession and was wearing gloves. He was then
confronted by an 81-year-old customer who was somewhat successful in slowing
down Mr. Johnnys activities. The owner or manager of the store then
became involved and there was a further violent confrontation with
Mr. Johnny ending up, as I understand it, on the floor being held by the
customer and Mr. Carter when the police arrived.

[8]

The judge noted this about the effect of the robbery on those who were
involved at the scene:

[27]      With respect to the
robbery, I have noted already it appears to be premeditated, but I think most
robberies of this fashion are. There was also a violent struggle, and I have
reviewed the four victim impact statements of the clerks that worked at the
store and of the store owner or manager, Mr. Carter. These people, going
about their daily business, have all been significantly impacted in their sense
of security, working in a place such as they do and generally moving about the
community. I expect that is a sense of security that takes a great deal of time
to recover.

[9]

Although the judge did not have before him a pre-sentence report,
dealing with the aboriginal status of the appellant and resources available to
him in that community, he did have evidence from the mother of the appellant
who by telephone gave some background history of the family and as well, he had
a psychiatric report from Dr. Riley, who is associated with the Forensic
Psychiatric Services Commission. According to this report the appellant started
drinking to excess at the age of 12 and about two years prior to the date of
sentence had begun to abuse cocaine. The doctor noted that the appellant told
him that the period of time when he was released from custody on the cocaine
charge in late 2008 until the spring of 2009 when he was involved in the
robbery was the longest he had remained out of custody since the age of 15.

[10]

When the appellant was 15, he was involved in a very disturbing crime in
Kamloops. He was on the date of this incident in company with an 18 year old
and a 22 year old. All three individuals were of aboriginal descent. The three
individuals set upon a man who was returning from his shift at a restaurant,
along a bicycle path across the Overlander Bridge in Kamloops. They assaulted
the victim and delivered kicks to the head of the victim causing him to become
unconscious. The oldest of the three continued the attack with additional kicks.
This resulted in the death of the victim, a young married man with dependents. There
appeared to be no particular motive for this violent activity. The three young
men then left the scene but were soon apprehended. All three of the assailants
had been drinking. He was raised to adult court and convicted of manslaughter.

[11]

The 22 year old was sentenced to life imprisonment for the murder of the
restaurant worker. The judge noted that a mitigating factor in regard to both
of the younger assailants was that they had attempted to pull the older man
Edwards away from the victim, who was continuing his attack on the defenceless
victim. The judge noted that both had participated successfully in treatment
programs while incarcerated, and that there was hope for rehabilitation with
intensive on-going treatment programs. Taking into account time served, the
judge sentenced the 18 year old to imprisonment for three years (the equivalent
to a sentence of seven years when pre-sentence custody was considered) and the
appellant to imprisonment for two years (equivalent to six years when taking
into account pre-sentence custody). The appellant was ordered to be on
probation for two years after his release. The order required him to take
counselling under the direction of a probation officer. He breached his
probation order on a number of occasions after his release. After his release
from the sentence of incarceration near the end of 2002, his record is as
follows:




2002-11-12

Edmonton, Alta



Fail
  to comply with probation order



1
  day on each chg conc





2002-12-17

Salmon Arm, BC



Fail
  to comply with probation order



7
  week plus probation 1 yr





2003-07-08

Salmon Arm, BC



Fail
  to comply with probation order



9
  mos & probation 12 mos





2003-07-08

Salmon Arm, BC



Obstruct
  Peace Officer



Jail
  30 days





2004-03-02

Salmon Arm, BC



(1)
  Fail to comply with probation order

(2)
  Theft under $5000



(1)
  60 days & probation 2 yrs

(2)
  1 day





2004-09-01

Salmon
  Arm, BC



Fail
  to comply with probation order



1
  day





2004-09-09

St
  Paul, Alta



Fail
  to comply with probation order



3
  mos





2005-05-03

Salmon
  Arm, BC



Fail
  to comply with probation order



1
  day





2005-12-21

Kamloops,
  BC



(1)
  Fail to comply with probation order

(2)
  Obstruct Peace Officer



(1 - 2) Time served (1 day) on each chg





2005-12-21

Salmon
  Arm, BC



Breach
  of Probation Order (2 chgs)



Time
  served & Jail 1 day on each chg





2006-06-27

Salmon
  Arm, BC



Breach
  of Recognizance



9
  mos Jail





2007-03-02

Edmonton,
  Alta



Fail
  to comply with probation order



10
  days





2007-04-25

Prince
  George, BC



Theft

Assault



Time
  served (22 days) & 3 mos Jail & 1 year probation

Time
  served (22 days) & 6 mos Jail & 1 year probation





2008-01-28

Prince
  Rupert, BC



Possession
  of a scheduled substance for the purpose of trafficking



4
  mos & mandatory prohibition order sec 109 CC





2008-01-15

Salmon
  Arm, BC



Mischief
  (2 chgs)

Breach
  of Recognizance



Fine
  $500

Jail
  38 days & 22 days credit





2008-08-25

Smithers, BC



Possession
  of controlled substance (2 chgs)

Breach of probation



Jail 3 mos each chg & consec. to Breach of Probation
Jail 30 days






[12]

As can be seen from the record, the appellant was in continuous
difficulty from the date of his release on the manslaughter sentence. It
appears he was involved in an incident of some violence in a theft at a liquor
store which resulted in the April 2007 sentences. His record for drugs appears
to commence in 2008.

[13]

Judge Struyk sentenced the appellant to six and a half years for the
assault of Cote. He referred to previous serious assault cases from this
jurisdiction of comparable facts,
R. v. Rasanen
, [1997] B.C.J.
No. 1260 (C.A.) and
R. v. Tschritter
, 2006 BCCA 202. In the former
case, a sentence of six years was sustained and in the latter an effective
sentence of eight years was sustained. Rasanen was 22 years old and Tschritter
was 21 years old. In both cases, catastrophic injuries resulted to the
respective victims, a situation paralleled in this case concerning the victim Cote.
While the assaults in those cases may have been more aggravated, the accused
were younger and had not accumulated the lengthy record for violence that is
the record of this appellant.

[14]

The judge imposed a sentence of five years consecutive on the robbery
plus three sentences of 60 days each on breaches of orders that occurred in the
Spring of 2009. These were to be consecutive to the sentences on the assault
and robbery. The collective sentences amounted to a total of 11 years and eight
months less credit of 260 days for a total effective sentence of time remaining
of just over 10 years and nine months.

[15]

The respondent notes that the Crown at sentencing had suggested a total
sentence in excess of fifteen years for the various charges. The defence asked
the Court to consider a global sentence in the three to five year range.

[16]

The appellant appeals from his sentence disposition to this Court. The
appellant seeks to have fresh evidence placed before the court, namely a
Gladue
type of report dated June 15, 2010. The appellant submits that the judge fell
into error when he did not refer to the aboriginal background and circumstances
of the appellant at the time of sentence, that the judge erred in failing to
have regard to the totality principle and that the total sentence imposed is
unfit as being too long. It is submitted on behalf of the appellant, as it was
to the sentencing judge, that an appropriate sentence would have been in the
range of three to five years in total, as being proportional to his overall
culpability and one that would properly take into account his circumstances as
an aboriginal offender as required by s. 718.2(e) of the
Criminal Code
.
Counsel for the appellant submits that the many disadvantageous systemic
factors affecting the appellant as disclosed in the material including a rather
chaotic upbringing by persons adversely affected by being residential school
survivors mitigates the moral blameworthiness of this appellant.

[17]

Arguably the judge fell into error when he failed to specifically make
reference to the aboriginal background of the appellant: see
R. v.
Sutherland
, 2009 BCCA 534. From the tenor and content of the sentence
proceedings, it does however appear to me that he was clearly aware that the
accused was of aboriginal descent. Because of this possible error, it falls to
this court to determine whether or not the sentences imposed resulted in a fit
sentence. The report sought to be filed contained considerable information
about this appellant and I consider it would be helpful to have this material
before us: see
R. v. Loring
, 2009 BCCA 166. I would therefore permit
this report to be adduced as fresh evidence. This material indicates there are
agencies that are prepared to work with this appellant upon his release. It
does seem that he has previously had access to resources to address his
problems and issues with alcohol and other addictive substances, but these to
date have not yielded much success as can be seen from the above criminal
record.

[18]

Counsel for the appellant suggests that the judge placed undue emphasis
on the tragic result of the assault and failed to distinguish the cases of
Rasanen
and
Tschritter
, which demonstrated more blameworthy conduct. Counsel
also submitted that the failure of the judge to consider the totality of the
sentences as to whether the aggregate sentences were appropriate discloses
error. It is submitted on behalf of the appellant that the sentences are simply
too long in total. Counsel suggested aggregate sentences in the range suggested
at sentencing would be fit for the circumstances of the offences and the
offender.

[19]

Counsel for the respondent notes that the only version of events about
the assault comes from the appellant since the victim has no memory of the
event. She submits that the absence of defensive type injuries on the victim
must be considered in assessing the circumstances of the assault. The
respondent submits that it was perhaps fortunate that more grave harm did not
result from the robbery incident having regard to the fact the appellant had
armed himself with a hammer and was prepared to engage in a violent struggle
with the staff and an elderly customer aged 81. Counsel for the respondent
submits that given the violent history of this appellant and his continuing
addiction problems, a lengthy period of incarceration was required in a
structured setting to protect the public and deter the appellant from further
offending. She submits the sentences in total were fit.

[20]

The assault charge and the robbery charge, the two most serious matters
for which he was sentenced, and comprise most of the aggregate time of the
sentences he faces, were very troubling crimes. The violence he inflicted in
the assault on Mr. Cote has resulted in the destruction of any normal life
for that person. It has imposed grievous burdens on the parents of the victim
and I am sure has also dramatically altered the prospects of his dependents. The
robbery of the jewellery store may have been motivated by the addiction
problems of the appellant. It is the fact that his activities at the store
manifested a very violent series of actions. I should say it is rather
fortuitous that someone was not seriously injured in that incident. It is in my
opinion of some significance that the appellant undertook this venture when he
was at least observably not in a condition of impairment by drugs or alcohol.

[21]

In the case of
R. v. Wells
, 2000 SCC 10, Iacobucci J. said this:

44.       Let me emphasize that s. 718.2(e) requires a
different
methodology
for assessing a fit sentence for an aboriginal
offender; it does not mandate, necessarily, a different
result
. Section
718.2(e) does not alter the fundamental duty of the sentencing judge to impose
a sentence that is fit for the offence and the offender. Furthermore, in
Gladue
,
as mentioned the Court stressed that the application of s. 718.2(e) does
not mean that aboriginal offenders must always be sentenced in a manner which
gives greatest weight to the principles of restorative justice and less weight
to goals such as deterrence, denunciation, and separation (at para. 78).
As
a result, it will generally be the case,
as a practical matter
, that
particularly violent and serious offences will result in imprisonment for
aboriginal offenders as often as for non-aboriginal offenders
(
Gladue
,
at para. 33). Accordingly, I conclude that it was open to the trial judge
to give primacy to the principles of denunciation and deterrence in this case
on the basis that the crime involved was a serious one.

[Emphasis added.]

[22]

If I thought it were at all possible that any proposal suggested on
behalf of this appellant had any likelihood of success, I might be persuaded to
accede to a submission that there should be some alteration of the total
sentence imposed on this offender by the sentencing judge. However, I do not
consider that there is any present likelihood of success from any of the
suggested proposals.

[23]

Section 718 of the
Criminal Code
sets forth the purposes and
principles of sentencing:

718.     The fundamental purpose of sentencing is 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;

(
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 acknowledgment of the harm done to victims and to the community.

[24]

The provisions of s. 718 that seem particularly applicable here are (b)
and (c) although (a) and (f) are also to be noted. The appellant, as his
counsel has noted, is not wholly to blame for his behaviour, having regard to
his history but that is cold comfort for those who have suffered at his hands. Because
the judge may have erred in failing to expressly have regard at sentencing to
the aboriginal circumstances of this appellant and to specifically advert to
the totality issue, this Court must review the sentences to determine if the
total sentence imposed on this appellant was fit.

[25]

The judge here was faced with an offender and offences that called for
heavy sentences. The appellant has a sad but dreadful history and is clearly a
continuing danger to any community he finds himself in. The only way in which
the public can be protected from further carnage by this unfortunate individual
is by his separation from society for a lengthy period. It may be that as he
progresses into his 30s that he can begin to mature and curb his violent
behaviour. While the judge did not advert to the totality principle, I consider
that the total sentences imposed were appropriate and fit. Nothing less would
have been adequate to recognize the continuing threat this appellant poses to
the safety of the public.

[26]

I think those charged with responsibility for parole will have to
carefully assess when it will be safe for the appellant to be at some form of
liberty. Upon his release he may be able to access resources that can assist
him to avoid further difficulties. That would be a highly desirable outcome,
but only time will tell if he can have any success in future along these lines.
I note that his mother, who has moved to Alberta to be away from what she sees
as a bad environment, stands willing to assist her son if he wishes to have
assistance. That may be a matter the appellant should seriously consider on his
release. Some family involvement could afford a measure of the stability that
has been lacking in the recent life of this appellant. In the result, despite
the able submissions of counsel for the appellant, I am not persuaded that we
ought to make any alteration in the total sentence of incarceration imposed by
the Provincial Court judge. Accordingly, although I would grant leave to
appeal, I would dismiss this appeal from sentence.

[27]

LEVINE J.A.
: I agree.

[28]

TYSOE J.A.
: I agree.

[29]

HALL J.A.
: This appeal is dismissed.

The Honourable Mr. Justice Hall


