R v Hiscock, 2020 BCCA 355

Appeal allowed. An Indigenous offender was given an effective global sentence of six years on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The sentencing judge failed to give sufficient weight to the systemic factors documented by the offenders’ Gladue report; thereby he erred in his application of s 718.2(e) of the Criminal Code.

Indigenous Law Centre CaseWatch Blog

Coda Hiscock was sentenced to six years incarceration on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The Court observed that the question is not what sentence they would have imposed; but rather, the deferential standard which intervenes only where a sentencing judge has committed an error in principle, or imposed a demonstrably unfit sentence (R v Friesen, 2020 SCC 9).

Mr. Hiscock contends that his sentence is unfit because of the failing to reasonably weigh the importance of his Aboriginal heritage and the intersectional systemic factors which have affected the offender (R v Gladue; R v Ipeelee). The failure to give sufficient weight to these factors amounts to an error in principle which is sufficient to allow the appeal.

The offence occurred in March 2018, when Mr. Hiscock fired at least seven shots from a semi-automatic firearm from the interior of a residence. The shots penetrated the interior walls of the residence causing myriad of damage, with at least three shots having struck unoccupied cars parked outside the building. The judge found that earlier that day Hiscock has used methamphetamines and that at the time of his arrest his demeanor indicated one who was high and possibly in a psychotic or manic state.

Mr. Hiscock was 31 years old at the time of the offence. His mother was a member of the Ojibwe First Nation, and his maternal grandmother and great-great-grandmother attended residential schools in Saskatchewan. His youth was disrupted by the dissolution of his mother and stepfather’s relationship, and subsequent alchohol abuse by his mother. His mother died from a drug overdose. He has also lost a nephew to drug overdose. Six months after the passing of his mother, one of his brothers was murdered. Six months prior to the offence giving rise to the sentencing, Mr. Hiscock’s girlfriend was murdered.

In considering the offenders relatively moderate criminal record which had not previously attracted federal custody, the mitigating factors evinced by his pre-sentencing and Gladue reports, and the comparative analysis of similar offences, the Court considers a global sentence of five years incarceration is fitting. In comparison to other offenders who committed similar offences, the sentencing judge levied a disproportionately onerous sentence on Mr. Hiscock for possession of a loaded firearm compared to others with more serious criminal records. Accordingly, the Court concludes that the reduction of a five-year sentence to four years would bring the offender’s sentence into the appropriate range. Given credit for time served, Mr. Hiscock’s sentence is one year, 315 days.

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