R v Young, 2021 BCPC 6

An offender, charged with possession of cocaine for the purposes of trafficking, is non-Indigenous but resides in a small isolated First Nations community, and identifies as Haida. The Court, after weighing the evidence and the principles of sentencing, applied a restorative justice approach, and determined that a one-year period of incarceration followed by two years’ probation is a fit sentence.

Indigenous Law Centre CaseWatch Blog

In 2018, the RCMP received an anonymous tip regarding the drug trafficking activities of Frank Young and his wife Roberta Young, who reside in Skidegate, a small isolated First Nations community. After surveillance on the Young’s, police officers subsequently attended the residence and Mr. Young was arrested. Various types of drug paraphernalia was seized, including cocaine that would have been sold, at a minimum, for a total price of between $6,720 and $8,400. In 2019, Mr. and Mrs. Young were jointly charged with a single count of possession of cocaine for the purpose of trafficking. Mr. and Mrs. Young both entered pleas of “not guilty” in court in 2020, however, Mr. Young changed his plea from “not guilty” to “guilty”.

Mr. Young is not biologically Indigenous, nor a member of the Skidegate Band and he is not a citizen of the Haida Nation, although he considers himself Haida. Mr. Young described his childhood as being “normal.” Mr. Young met his wife in 1978 and were married in 2000 and stayed together until recently, when Mrs. Young left him. Together they have four children now adult ages. Mr. Young considers himself a high functioning addict, who was able to sustain a long career and raise a family without criminal issues.

As an adult, Mr. Young developed a drug habit and his social peers became mostly other drug users. He began using cocaine in his mid-20s, consuming half a gram to one gram of powder cocaine every weekend. Mr. Young has a dated criminal record that is not particularly relevant to this sentencing, given the time that has passed and the nature of the three convictions. Mr. Young experienced some difficulty with his addictions during his career, but maintains having control over it. The Deputy Chief Councillor for the Skidegate Band Council, has known Mr. Young for in excess of ten years and directly contradicts Mr. Young’s statement that he never sold drugs to children. He states that even while Mr. Young was working, there are three main families that traffic drugs in Skidegate, with Mr. Young’s family being one of them.

There is nothing to equate Mr. Young’s life experience with that of the Haida people specifically or Indigenous peoples in Canada generally. Mr. Young’s circumstances are not unique from those of other non Indigenous offenders. There is nothing in his personal circumstances, or in the manner Mr. Young committed the offence, that leads to the conclusion that Mr. Young’s moral blameworthiness is lessened due to systemic factors or individual Gladue factors. Just because an offender who is not biologically Indigenous self-identifies as Indigenous does not mean that they are entitled, as a matter of law, to have the sentencing judge consider them an Indigenous person for purposes of s. 718.2(e) and the Gladue analysis (R v Antoine, 2017 BCPC 333; R v Lawrence, 2018 BCSC 1319; and R v Kreko, 2016 ONCA 367).

In the sentencing context for the non-biologically Indigenous offender who self-identifies as Indigenous and seeks the benefit of s. 718.2(e) and the Gladue analysis, a number of factors are considered. Although Mr. Young is not an Indigenous offender, it is appropriate to consider a restorative justice approach to his sentencing, albeit it in a modified form. With respect to Indigenous communities, restorative justice ensures that the offender’s sentencing reflects an understanding of the specific First Nations’ cultures, traditions, and hopes for the future. It also means addressing local issues by engaging with the local community. The Community Impact Statement presented on behalf of the Skidegate Band Council served the purpose of enlightening the Court about the local community and allowed the victims of drug dealing and drug addiction in Skidegate a say in the outcome of Mr. Young’s case.

Based upon the entirety of the evidence, Mr. Young falls within the category of busy retail seller or full-time commercial operation. Mr. Young’s moral blameworthiness is at the highest end of the spectrum. The uniqueness of Mr. Young’s situation allows for a significant reduction of sentence from 18 month’s incarceration. However, there should not be a reduction with regard to the two years’ probation, despite the ongoing COVID-19 pandemic, as it will not negatively affect Mr. Young’s health issues, warranting a shorter period of probation (R v Reimer, 2020 BCCA 102). A one-year period of incarceration is a significant reduction from 18 months incarceration, and followed by a two-year period of probation, it is the minimum sentence that the Court can impose. Any lesser sentence would be unfit.