R. v. Barker

2025 BCSC 735 R. v. Barker

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Barker, 2025 BCSC 735 Date: 20250410 Docket: 185272 Registry: Victoria Between: Rex And Brenna Dawn Barker Before: The Honourable Justice Jones Oral Reasons for Sentence Counsel for the Crown: S. Green Counsel for the Accused: C.L. Sutton Place and Date of Hearing: Victoria, B.C. March 14, 2025 Place and Date of Judgment: Victoria, B.C. April 10, 2025 Table of Contents I. Introduction.. 3 II. Circumstances of the Offences. 4 III. Circumstances of the Offender.. 7 A. Reports. 7 B. Attitude to the Offence. 12 C. Criminal Record. 13 D. Conduct While on Bail 13 IV. Crown and Defence Positions. 15 V. Legal Framework / Principles. 18 A. Principles of Sentencing. 18 B. Offence-Specific Provisions. 23 C. Range of Sentence / Parity. 24 Crown Cases. 24 Defence Cases. 31 VI. Discussion.. 34 A. Aggravating Circumstances. 35 B. Mitigating Circumstances. 38 C. Gladue Principles / Sentencing Considerations for Indigenous Offenders. 39 VII. Sentence / Disposition.. 44 A. Type of Sentence. 44 B. Sentence for Each Count 45 C. Time in Custody. 46 D. Actual Sentence (accounting for pre-sentence custody) 46 VIII. Probation Order.. 46 IX. Ancillary Orders. 50 I. Introduction [1] These are my oral reasons on sentencing. [2] On March 15, 2024 I found Brenna Dawn Barker ("Ms. Barker") guilty of one count of aggravated assault of Adrian O'Meara

("Mr. O'Meara") on or about April 24, 2021 contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] and a second count of assault with a weapon, contrary to s. 267(a) of the Code. [3] The delay from the date of conviction to the date of the sentencing hearing on March 14, 2025, one year less a day later, stems from the preparation of pre-sentencing reports, and an adjournment to accommodate the Crown counsel on an unrelated matter. [4] The initial delay in scheduling the sentencing hearing following the date of conviction was to allow time for three reports to be prepared for the purposes of the sentencing hearing: (1) a presentencing report; (2) a psychiatric assessment; and (3) a Gladue report because Ms. Barker is an Indigenous offender. [5] On July 29, 2024, Ms. Barker applied for and was granted an adjournment of the sentencing hearing scheduled for that day to allow further time for a psychiatric report to be prepared for the Court's consideration in sentencing. [6] A psychiatric assessment and report had not been completed for the hearing on July 29. 2024 because Ms. Barker failed to attend more than one appointment scheduled for the assessment. [7] Another attempt to conduct an assessment occurred in August and September 2024, with Ms. Barker attending two scheduled appointments on August 8, 2024 and September 24, 2024; however, Ms. Barker declined to

participate in the assessment. [8] As a result of comments made by Ms. Barker, the attending psychologist expressed concern about Ms. Barker's fitness to stand trial. [9] The sentencing hearing scheduled for November 12, 2024 was adjourned to December 20, 2024 on account of the need for the Crown counsel's involvement in an unrelated jury trial that had been urgently scheduled for two weeks commencing November 5, 2024. [10] The sentencing hearing scheduled for December 20, 2024 was adjourned to January 8, 2025 for the purpose of Ms. Barker undergoing a fitness assessment, which was conducted on December 30, 2024, the assessment report of the same date was delivered to the Court on February 27, 2025, with the opinion that Ms. Barker was fit to stand trial. [11] The sentencing hearing was finally held on March 14, 2025, and adjourned to today for these oral reasons for sentence. II. Circumstances of the Offences Facts [12] The circumstances of the offences are set out in detail in my reasons on the conviction dated March 15, 2024 and indexed as 2024 BCSC 2582. My findings of fact are as follows: a) On the evening of April 23, 2021, and into the early morning hours of April 24, at the apartment of the complainant, Adrian O'Meara, he, Ms. Barker, and two of Mr. O'Meara's friends, Colin Williams and John Memnook, hung out at the apartment, playing video games and drinking. b)

Earlier, Mr. O'Meara and his two friends had been drinking over the course of the day at the apartment. By the time Ms. Barker arrived at about 6:00 p.m., Mr. O'Meara had finished one 2 litre bottle of cider. c) Mr. O'Meara and one of his friends walked across the street to purchase alcohol. Mr. O'Meara purchased Corona Lite beer for Ms. Barker and three 2 litre bottles of cider, one each for Mr. O'Meara and his two friends. d) They returned to the apartment. e) As the four talked and drank in the living room, everything was friendly. At one point Ms. Barker pulled out two knives from her purse. She also showed them a BB gun she had. f) After about an hour or so, Ms. Barker received a telephone call, believed by Mr. O'Meara to be concerning her children, and she left the apartment. g) While Ms. Barker was gone, Mr. O'Meara went to the liquor store a second time and purchased three more 2 litre bottles of cider, one each for his two friends and him. He had consumed a second 2 litre bottle of cider since having gone to the liquor store the first time shortly after 6:00 p.m. h) When Mr. O'Meara returned to the apartment from the liquor store, he found that Ms. Barker had returned to the apartment. Her demeanour had changed from earlier in the evening. i) Mr. O'Meara described her as having been really friendly earlier. Upon her return she seemed angry in the way she was

talking. j) Everyone continued to drink and talk. k) Photographs of the apartment taken by police show the coffee table in front of the couch. In one photograph, visible on the coffee table adjacent to where Ms. Barker had been sitting on the couch that evening are five opened cans of Corona Lite, and three cans lying on their side. The tops of these three cans are not visible in the photograph. l) Later that night, Mr. Memnook drunkenly said to Mr. O'Meara "I love you", and Mr. O'Meara responded "love you too man." Mr. O'Meara explained in his testimony that when Mr. Memnook gets drunk he says he loves everybody. m) Ms. Barker started laughing at them, calling them fags and making fun of them. n) Mr. O'Meara told Ms. Barker that was enough, but she continued with her comments. Mr. O'Meara politely told Ms. Barker a bunch of times she had to leave, and told her she could call him when she was sober. When she did not leave he raised his voice and eventually told her to get the fuck out. There was no physical altercation. Ms. Barker then left the apartment by the front door and it closed behind her. o) Shortly thereafter, within a minute or two, Ms. Barker quickly entered the apartment through the front door, approached Mr. O'Meara from behind while he was sitting on the couch with his back to the door, stabbed him in the right cheek with a knife, and ran back out the apartment

door. [13] I found beyond a reasonable doubt that Ms. Barker was the assailant, she committed the offence of aggravated assault on Mr. O'Meara, and assault with a weapon. Victim Impact [14] The victim of Ms. Barker's assault, Mr. O'Meara, did not provide a victim impact statement. [15] Mr. O'Meara testified at trial that he was calm after the assault. He stated that he was not angry or upset with Ms. Barker about what happened, he has not been concerned and he has moved on from the incident. [16] Mr. O'Meara testified that after the assault he was taken by ambulance to hospital and treated for the wound to his cheek, including approximately ten stitches. The wound was a small vertical cut in Mr. O'Meara's right cheek. From the photographs taken at the time, the cut appears to be approximately one inch in length, extending from near the corner of his mouth vertically to a point just below the level of the lower portion of his nose. The wound appears from the photographs to have bled profusely, but healed well, almost to what it was before the assault. He also suffered a chipped tooth from the knife blade passing through his cheek into his mouth. III. Circumstances of the Offender A. Reports [17] Three reports were tendered in evidence - a pre-sentence report, or PSR, a psychological assessment letter, and a Gladue report, summarized as follows. [18] I note the information

regarding Ms. Barker is as of the date of the reports. Pre-Sentence Report [19] The pre-sentence report filed May 3, 2024 was tendered in evidence. The author of the report notes that due to Ms. Barker's limited participation in the interview the report is mainly based on information provided by collateral contacts, a previous Pre-Sentence Report completed in 2015, and BC Corrections file notes. [20] The report states that Ms. Barker is a member of the Yuułuʔiłʔatḥ (Ucluelet) First Nation through her maternal lineage. She has lived in Victoria for most of her life. She has had limited exposure to her Yuułuʔiłʔatḥ culture and Nation. [21] Ms. Barker is now 35 years old. She is one of four children born to Roberta Touchie and Doug Barker, who were in a common law relationship for ten years. As a child, Ms. Barker witnessed physical abuse between her parents. Following her parents' separation, Ms. Barker remained in the care of her mother. Her father passed away in 2011, when Ms. Barker was 22 years old. Her mother reports Ms. Barker attempted to commit suicide after her father's death. [22] Ms. Barker was sexually assaulted at age 11 by a friend's older brother. After this, or around the age of 12 or 13, Ms. Barker began running away from home. [23] Over the years Ms. Barker worked at Dairy Queen, the Travellers Inn, and as a general labourer. She obtained certification in

Occupational First Aid, traffic control and forklift training. She describes having worked "on and off" throughout her life. She is presently receiving disability income assistance. [24] Ms. Barker has four children between the ages of three and sixteen, who are presently in the care of her sister, Sally. An application is being made for the children's custody to be permanently transferred to Sally. [25] Ms. Barker last completed grade eight of her formal education. Since leaving school she has completed course work to Grade 11 through the Victoria Native Friendship Centre, and she has plans to earn her Dogwood diploma in the future. [26] A 2015 pre-sentence report is stated to include the note that Ms. Barker began drinking around age 12, her use of alcohol becoming problematic almost immediately. She also referred to the use of crystal methamphetamine, among other illicit substances, while living on the streets as a teenager. [27] Ms. Barker has been involved in counselling, however it is reported she is not open to counseling as she felt judged during the counselling process; and, she has sought treatment for addiction several times but found it unhelpful. [28] She denies the current use of alcohol or drugs. She recalls attending treatment approximately eight times regarding her use of alcohol, but states she found it unhelpful. She attended treatment in Williams Lake at age

17; more recently in 2017 she attended the Nagmis Treatment Centre in Alert Bay for three months. [29] The BC Corrections file notes indicate that in 2023 Ms. Barker was certified under the Mental Health Act, R.S.B.C. 1996, c. 288, and she has received injections for psychosis. During her last period of custody, institutional notes indicate inappropriate behaviour in custody including aggression, violence towards staff, and threats of harm toward staff. [30] While on bail for these index offences, Ms. Barker was electronically supervised and required to reside with her mother; however, in February 2024 she violated her conditions by leaving her mother's presence while out in the community and she was returned to custody. [31] Regarding the offences at issue here, Ms. Barker is reported to deny wrongdoing and does not express empathy for the victim, stating she does not feel the incident negatively affected the victim, and he just wants money. [32] She did not express an interest in returning to the Ucluelet community, but has expressed an interest in continuing working with the Aboriginal Coalition to End Homelessness Society ("ACEHS"), which has assisted her in providing a temporary housing unit, after having been previously living on the street, unhoused; and she has been involved with the ACEHS for approximately four years engaged in carving, beading and other cultural

activities. [33] Ms. Barker has expressed an interest in attending a Land Based Healing Camp, offered through ACEHS, which includes activities such as beading, cedar weaving and medicine walks. The report states that according to the First Nations Health Authority, Land Based Health allows for Indigenous peoples to reconnect to the land while utilizing support to relearn, revitalize, and reclaim their traditional wellness practices. Psychological Assessment Letter [34] A letter dated April 29, 2024 from Dr. Breitman, a forensic psychiatrist with Forensic Psychiatric Services, was tendered in evidence. [35] Dr. Breitman notes the referral was for a risk assessment of Ms. Barker for the purpose of sentencing; however, the author was unable to complete an assessment. The letter states that Ms. Barker refused to sign a release to allow access to some of her medical information; she failed to attend the first scheduled appointment on April 8, 2024, despite a written notice of appointment and reminder of the assessment; she failed to attend a second appointment on April 29, 2024, and she did not contact the clinic, and she could not be reached by telephone. As a result, the author of the report was unable to offer an opinion on risk, or provide any recommendations. [36] A second letter dated September 25, 2024 from Dr. Dugbartey, a registered psychologist with Forensic Psychiatric

Services, refers to Ms. Barker attending two scheduled appointments at the clinic on August 8, 2024 and September 24, 2024, but Ms. Barker declined to participate in the assessment. [37] As a result, Dr. Dugbartey was unable to provide an opinion to assist with sentencing; however, he did note that Ms. Barker made some unusual comments which caused Dr. Dugbartey to express his concern about Ms. Barker's fitness to stand trial, which led to a fitness assessment dated December 30, 2024, in which the author's opinion is that Ms. Barker meets the cognitive criteria required for being considered fit to stand trial. Gladue Letter [38] A Gladue letter filed on July 12, 2024 was tendered in evidence (the "Gladue Letter" or "Letter"). The Letter repeats or confirms many of the findings from the pre-sentence report regarding Ms. Barker's personal history. [39] The report notes that Ms. Barker is presently of no fixed address and has been staying at a temporary housing unit provided through the ACEHS. Before this placement, Ms. Barker is reported to have been unhoused, staying on the streets of Victoria in a tent where she was exposed to frequent assaults and theft of her belongings. [40] Regarding Ms. Barker's background, the Gladue Letter refers to Ms. Barker's upbringing during which she witnessed the normalization of substance abuse, experienced racism, bullying, instability,

substance abuse at an early age, and difficulties with interpersonal relationships through her childhood and adolescence. [41] In her adult life, Ms. Barker has experienced intimate partner violence, substance abuse, family disruption and breakdown, and homelessness. Ms. Barker's mother reported that since Ms. Barker's children were removed from her care, her substance abuse has become more frequent and her mental state has further deteriorated. [42] The author reports that a representative of ACEHS reported that Ms. Barker's most recent period of sobriety lasted eight months, she was doing well during this time, attending school, video calling her children and being involved in family events before relapsing after being denied attending a land-based healing opportunity through ACEHS because she was under house arrest with an ankle monitor that could not be tracked during the land-based healing program. [43] Regarding Ms. Barker's Indigenous background, Ms. Barker has had limited exposure to her Yuułuʔiłʔatḥ culture and Nation, having lived in Victoria most of her life, which is described in the Gladue report as Ms. Barker having been displaced and disconnected from the Yuułuʔiłʔatḥ First Nation community, her family having been negatively affected by intergenerational impacts of colonialism and displacement [44] The Gladue Letter provides a summary of the history of the

Yuułuʔiłʔatḥ First Nation, describing it as part of the Nuu-Cha-Nulth Nations, Ucluelet being made up of the families from nine different families, with the First Nations Government located in the traditional village of Hitacu ("Ittatsoo"), an area northwest of Barkley Sound on the west coast of Vancouver Island, across from the town of Ucluelet. [45] Ms. Barker has been involved with some aspects of Coast Salish Indigenous culture through ACEHS. She is reported to enjoy cultural activities and engages in them when she is able to do so. [46] Ms. Barker's mother, Roberta Touchie, reported that she herself was a forced attendee of Port Alberni Indian Residential School, as were Ms. Barker's maternal grandparents. Ms. Touchie reported regular sexual assaults, molestations, beatings, abuse and malnourishment during her eight years at the Port Alberni school. The impacts of that experience were negative and caused her to become depressed and suicidal. [47] The Gladue Letter refers to Ms. Barker's witnessing of conflict and violence between her parents; and also to racism, discrimination and abuse Ms. Barker experienced during elementary school, including the school principal physically disciplining her in Grade 4 by twisting her arm, causing Ms. Barker's father to withdraw her from school for the balance of the year. [48] The Gladue Letter also mentions the sexual assault of Ms.

Barker at age 11, and her mother's attempts to assist Ms. Barker with the trauma of that incident, unfortunately Ms. Touchie believes her efforts to have been unsuccessful. [49] Ms. Barker is reported to have been exposed to intimate partner violence throughout her relationships. While unhoused and living on the street she has been exposed to numerous assaults, which led to the ACEHS providing Ms. Barker with a temporary housing unit, with a plan to have Ms. Barker receive proper medication, sobriety and a more permanent housing unit, but she needs to be stabilized before she can be placed in a housing unit to avoid being a risk to other residents. [50] The Gladue Letter sets out the Gladue factors, being the "unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts": Gladue at para. 93. [51] I review these factors in the "discussion" section of these reasons below, and refer also to the Gladue Letter's reference to a number of community organizations in Victoria such as ACEHS and others, where Ms. Barker has received assistance, including for housing, health support, and emotional and mental support. B. Attitude to the Offence [52] Ms. Barker has not expressed remorse for having stabbed Mr. O'Meara. The PSR refers to Ms. Barker denying wrongdoing. [53] Lack of remorse is an absence of a mitigating factor, not an aggravating factor, but may play a role in the court's assessment of Ms. Barker's prospects for rehabilitation: see R. v. Larose, 2023 BCPC 174 at para.

36. C. Criminal Record [54] Ms. Barker's criminal record was in evidence. There are a number of entries, many of less significance in the sense that they do not involve violence, for example they include a conviction for causing unnecessary suffering to an animal in 2015, before the offences here, and theft of merchandise from a Walmart in 2022, after these offences. [55] There is also a conviction regarding an unprovoked assault of an elderly woman in downtown Victoria in 2023, after these offences, to which Ms. Barker pled guilty of assault and was sentenced to 7 days in jail with 12 months probation. D. Conduct While on Bail [56] Regarding Ms. Barker's conduct while on bail, the Crown counsel provided the following summary of events since the offences occurred: a) When Ms. Barker was first arrested for this offence on April 24, 2021, she was initially charged with assault with a weapon, held in custody overnight, and released the following day on a recognizance with no financial obligation with conditions including that she report to a bail supervisor, not have contact with Mr. O'Meara, not possess weapons, and not consume alcohol or drugs. Those basic conditions remained on the balance of her orders for the next three years. b) On May 26, 2021, when the charges were upgraded to aggravated assault, Ms. Barker was re-released on a similar bail order with no substantive

changes in her conditions. c) The first preliminary inquiry scheduled for March 29, 2022, was adjourned as Mr. Memnook did not attend court as required. A second preliminary inquiry was scheduled for August 25, 2022, however Ms. Barker failed to attend and a warrant was issued. Ms. Barker attended court later that day after the Crown witnesses had been dismissed, and was released on the same release order. On December 12, 2022, a warrant issued in relation to an allegation that Ms. Barker had breached her release order, and she was arrested and released on December 29, 2022 on another release order with substantively the same conditions. d) On March 14, 2023, Ms. Barker committed the unprovoked assault against a senior woman in Victoria's downtown. She pled guilty to this offence on January 3, 2024. e) On March 22, 2023, a third preliminary hearing was scheduled, however Ms. Barker failed to attend once more. The preliminary hearing took place in her absence and she was committed to stand trial. f) On March 23, 2023, Ms. Barker was arrested and held in custody until she was released on March 27, 2023, on a recognizance in the amount of $1000 without deposit or surety with substantively the same conditions as before. g) On June 19, 2023, Ms. Barker was arrested in relation to allegations that she assaulted two civilians and a police officer while intoxicated in a park, thereby

also allegedly breaching her bail conditions that she not possess or consume alcohol. She was held in custody until her release on October 16, 2023. The October 16, 2023 release order was in the amount of $1000 without deposit with her mother Roberta Touchie acting as surety. It was at this time Ms. Barker was placed on strict conditions requiring electronic monitoring and house arrest, in addition to reporting, no weapons, no drugs and alcohol, and additional no contact conditions. h) On February 28, 2024, Ms. Barker breached her bail conditions by fleeing from her surety (her mother) and refusing to return. On March 7, 2024, Ms. Barker was released on a release order in amount of $2000 without deposit or surety, at which time her bail conditions were relaxed from house arrest to a curfew. i) On March 11-13, 2024, the trial of this matter took place. Ms. Barker was convicted on March 15, 2024 and sentencing reports were ordered. j) On May 23, 2024, Ms. Barker pled guilty to the breach of her bail order from February 28, 2024, as described above. IV. Crown and Defence Positions Crown's Position [57] The Crown seeks a sentence in the range of 3-4 years jail, taking into account the aggravating and mitigating factors in this case, discussed in the discussion section below. [58] The Crown places emphasis on the sentencing principles of denunciation, deterrence, and protection of

the public as being of paramount importance, while also acknowledging the importance of rehabilitation, but only if Ms. Barker engages in the process. [59] The Crown seeks restitution pursuant to s. 738(1) of the Code, in the amount of $722.93 payable for the benefit of Adrian O'Meara for the balance of the ambulance fee charged to Mr. O'Meara after he was transported to Victoria General Hospital following the incident. [60] The Crown seeks mandatory ancillary orders including a weapons prohibition and a DNA Order. Defence Position [61] The defence submits that a sentence in the range of 12-16 months in jail followed by two years probation would be an appropriate sentence for Ms. Barker. [62] The defence submissions refer to many of Ms. Barker's personal circumstances in the pre-sentence report, summarized above, including but not limited to her childhood and upbringing, including her witnessing arguments and violence between her parents; her parents' separation when she was a newborn; sexual assault at age 11; consumption of alcohol at age 12; running away from home as a teenager; use of methamphetamine and other illicit substances; staying in a youth shelter; her father's death followed by her suicide attempt; mental health issues including anxiety, brain injury and PTSD; and physical assaults from an intimate partner and other individuals in the community. [63] The defence

submissions refer to the pre-sentence and Gladue reports regarding the impact on Ms. Barker of the history of indigenous persons and the legacy of colonialism in Canada, and her mother's and maternal grandparents' attendance at residential schools, and the negative impacts of the legacy of residential schools on the Yuułuʔiłʔatḥ First Nations community. [64] The defence submissions refer specifically to the Gladue factors applicable to Ms. Barker as summarized in the Gladue report, which are set out in the sentencing discussion below, the defence emphasizing the numerous and significant Gladue factors as significantly relevant to this sentencing, as bearing a direct and causal connection to this offence. [65] Regarding the offence, the defence submits that intoxication was a significant and contributing factor, witnesses having referred to a change in Ms. Barker's behaviour at some point in the evening, a disagreement escalating rapidly, with Ms. Barker insulting Mr. O'Meara and his friend, leaving the apartment then returning and stabbing Mr. O'Meara once. The defence suggests there is no evidence of planning or premeditation. [66] The defence agrees that the range of sentence for aggravated assault is 16 months to 6 years imprisonment, but that the Gladue factors, Ms. Barker's limited criminal record, the spontaneous nature of the attack while under the influence, the single

blow, and minimal damage all support a sentence below the range. Ms. Barker's Submissions [67] Ms. Barker made submissions to the Court on her own behalf. She described herself as a changed person, working hard on herself including taking high school level courses at the Alouette Correctional Centre for Women in Maple Ridge ("Alouette"), where she had been incarcerated most recently since November 25, 2024, holding two cleaning jobs, and taking counselling with a psychiatrist and a mental health worker. [68] A number of Ms. Barker's certificates of achievement were in evidence, indicating Ms. Barker's recent completion of a number of programs including what appear to be indigenous cultural modules, anger management and employment preparation. [69] Ms. Barker has been prescribed and taken the medication Clopixol, which I understand to be an anti-psychotic medication, and other medication which she describes as helping with her mental state. She reports that she has taken an interest in, and has enjoyed the indigenous cultural activities available to her at Alouette. She hopes to continue working on herself when she is released from Alouette. Family and Other Support [70] Ms. Barker enjoys some family support. Ms. Barker appeared pleased when she pointed out her mother and brother at the sentencing hearing, and her mother was present during the trial. For a number of months in

late 2023 and early 2024 her mother acted as her surety relating to a release order, and Ms. Barker lived with her mother while under house arrest during that time. [71] Five letters of support were submitted to the Court, all dated in 2023, including three from a nurse, a counsellor and a support person at ACEHS, who spoke favourably of Ms. Barker as a respectful participant in ACEHS programs in 2022 and 2023, both volunteering and in cultural activities such as carving, painting and beading. [72] Two letters from case managers at the Victoria Brain Injury Society describe her involvement with the society. I attach little weight to these two letters as they are for the most part non-admissible opinion evidence about Ms. Barker's self-reports of brain injury and her challenges; however, they do provide some evidence of Ms. Barker's mental state and her involvement in a local community organization assisting Ms. Barker with her specific challenges. V. Legal Framework / Principles A. Principles of Sentencing [73] The well-established principles applicable to sentencing are set out in s. 718 of the Code: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with criminal 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 others 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 the victims or to the community. [74] Section 718.1 states the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [75] Section 718.2 sets out the following additional principles that a court shall also take into consideration: (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, (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. [Emphasis added.] [76] Sentencing is a balancing process - no one objective trumps the others; it is a sentencing judge's role to determine which objectives merit the greatest weight given the circumstances of the offence and of the offender: R. v. Nasogaluak, 2010 SCC 6 at para. 43. [77] A judge must be satisfied in all the circumstances of a specific offender that a fit and proper sentence is provided. [78] These are the sentencing principles to which the Court must pay attention. [79] Of particular relevance here is the principle in s. 718.2(e) regarding Ms. Barker as an Aboriginal offender. [80] In R. v. Kehoe, 2023 BCCA 2 [Kehoe BCCA], the Court of Appeal reviewed the Gladue principles as follows: [36] In R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679, and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada made clear that s. 718.2(e) is remedial and is

intended to deal with the continuing crisis of over‑representation of Indigenous offenders in the Canadian criminal justice system: Gladue at para. 33; Ipeelee at para. 59. [37] This crisis is driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and prejudice experienced by Indigenous people in Canada. Sentencing judges are to take judicial notice of how Canada's colonial history and post-colonial assimilationist policies have translated into these terrible outcomes: Gladue at para. 83; Ipeelee at para.

60. These systemic and background factors do not excuse or justify criminal conduct. Rather, they provide the necessary context for understanding and evaluating case‑specific information during the sentencing exercise: Ipeelee at para. 83. [38] Systemic and background factors affect the incidence of crime and recidivism for all offenders. However, as the Supreme Court recognized, the circumstances of Indigenous offenders are different from other offenders because many Indigenous people are "victims of systemic and direct discrimination" and "dislocation" and are "substantially affected by poor social and economic conditions": Gladue at para. 68. [39] The over‑representation of Indigenous people in Canada's prison population is tied to broad societal issues. Nevertheless, the Supreme Court in Gladue and Ipeelee recognized that culturally attuned sentencing for Indigenous offenders has a role to play in addressing this crisis: Gladue at para. 65; Ipeelee at paras. 64-70; R. v. Mero, 2021 BCCA 399 at para. 68. [40] Accordingly, Gladue and Ipeelee transformed the approach to sentencing Indigenous offenders. As with all offenders, a judge sentencing an Indigenous offender must take a holistic approach to imposing a fit sentence that is proportionate to the seriousness of the offence and the moral blameworthiness of the offender: Ipeelee at para.

37. However, since the circumstances of Indigenous offenders are "significantly different" from those of non-Indigenous offenders, the judge must pay particular attention to two factors: 1. The unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular Indigenous heritage or connection. See Gladue at para. 66; Ipeelee at para. 59. [41] In considering systemic and background factors, the judge must take account of all the surrounding circumstances, including "the unique circumstances of the offender as an aboriginal person," and display sensitivity to and understanding of the "difficulties aboriginal people have faced with both the criminal justice system and society at large": Gladue at para. 81; Ipeelee at paras. 59-60, 75. [42] It is not necessary to establish a direct causal link between systemic and background factors and the offence at issue. How the complex interplay of historical factors impacted a particular Indigenous offender may be difficult or impossible to establish. Nevertheless, the specific systemic or background factors at play are critically important. They may help the court assess the moral blameworthiness of the offender or identify appropriate sentencing objectives: Ipeelee at paras. 81-83; Hamer at para. 98. [43] As for the appropriate sanctions, while restorative sentences may be more appropriate for Indigenous offenders, applying Gladue principles will not necessarily lead to a reduced sentence. There is no automatic heritage-based discount: Gladue at para. 88; Ipeelee at paras. 71, 75; Mero at para.

73. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non‑Indigenous offender: Gladue at para. 33; R. v. Wells, 2000 SCC 10 at paras. 42-44; Ipeelee at paras. 84-85; Mero at para. 73. [44] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(e) of the Code and Gladue principles: Ipeelee at paras. 84-85. In fact, absent an informed waiver, sentencing judges have a duty to consider s. 718.2(e) and Gladue principles in every case involving an Indigenous offender: Gladue at para.

82. As the Court explained in Ipeelee at para. 87, a failure to do so constitutes an error in principle justifying appellate intervention: [87] The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [81] In Kehoe BCCA, the Court of Appeal then considered the Gladue principles in light of the specific circumstances of Mr. Kehoe's case, which in many, but not all respects I consider relevant to Ms. Barker's circumstances, as follows: [45] Sentencing is a difficult process that often requires balancing competing principles and objectives. Will protection of the public be best achieved by a deterrent sentence or one focused on rehabilitating the offender? Where in the sentencing range does a particular offender belong when they have committed a serious offence but have a reduced level of moral blameworthiness? To what degree are aggravating features of the offence offset by mitigating circumstances? [46] In many cases involving the sentencing of Indigenous offenders, Canada's assimilationist policies have been so successful that the offender may be largely or completely disconnected from their Indigenous culture, community and support: Hamer at para.

115. In such cases, an obvious tension arises in the task of balancing (1) the well-known principle that it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue with (2) the requirement that it is nevertheless necessary to "evaluate relevant information about the significance of a person's Indigenous identity and the individual's circumstances as an Indigenous person": Hamer at para. 117. [62] I take no issue with the judge's view of the seriousness of Mr. Kehoe's offence. His actions were unprovoked, senseless, violent and put the victim's life in danger. Given his record of criminal offending and the role that his substance use disorder has played in it, I accept the judge's comment that "an un-rehabilitated Mr. Kehoe is a danger to society." [63] I also take no issue with the range of sentence identified by the judge. Craig establishes a range of 16 months to six years' imprisonment for aggravated assault. Unprovoked attacks with weapons belong at the higher end of the range: Craig at para. 10. [64] The issue is whether Gladue principles have a meaningful role to play in sentencing Mr. Kehoe. In my view, they do. [65] The author of Mr. Kehoe's Gladue report noted that the following "Gladue factors" impacted Mr. Kehoe and his family: 1. Substance abuse and addiction in [Mr. Kehoe]'s immediate family and by [Mr. Kehoe] himself.

2. Loneliness, depression, anger, trauma, suicidal ideation when [Mr. Kehoe] started cutting himself as a teenager.

3. Family dysfunction, disruption and breakdown from the time [Mr. Kehoe] can first remember until he was homeless on the streets as a teenager.

4. Instability as demonstrated by [Mr. Kehoe]'s frequent moves, his periods of homelessness and his abandonment by his mother and stepfather.

5. The premature violent death of his brother Jamie due to street life involvement.

6. Normalization of violence and neglect as demonstrated by his parents and experienced as a child so that [Mr. Kehoe] started using this as a method of survival for self-preservation. [66] There is no question that Mr. Kehoe was raised in a dysfunctional household where substance abuse, anger, verbal abuse, emotional abuse and criminal activity were normalized. There is also no question that the instability in Mr. Kehoe's childhood contributed to his substance use disorder and anti-social behaviours. [67] As noted, the Gladue report indicated many of the same unfortunate experiences from Mr. Kehoe's youth as the presentence report and the psychological report. I have taken those factors into account, both as general background factors and factors to be considered under s. 718.2(e). I consider the nexus between Mr. Kehoe's Aboriginal status and this offence to be limited. [68] The judge correctly observed that "[w]omen of [Indigenous] heritage have poor outcomes in our society." Some of those poor outcomes include social and economic marginalization, instability, vulnerability to living in abusive and dangerous environments and the development of mental health issues and substance use disorder. It is widely recognized that an Indigenous woman's disconnection from a functional and protective Indigenous community increases her risk of experiencing these outcomes: see, for

example, "Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women Girls," Vol 1b. at 108, 143. [69] In this case, I do not find it difficult to infer that Canada's colonial history and assimilationist policies played a role in bringing Mr. Kehoe before the court. That is because I do not consider it simply a coincidence that Mr. Kehoe's mother (1) became disconnected from her Métis community and culture and (2) fell victim to the all too common plight of similarly situated Indigenous women across Canada. In the absence of policies specifically designed to disconnect Indigenous people from their communities, cultures and supports, Mr. Kehoe's mother stood a much better chance of raising him in a stable and functional environment where his heritage was celebrated and where he would develop pro-social and community-oriented values. [70] On a proper application of Gladue principles, I consider Mr. Kehoe to have a significantly reduced level of moral blameworthiness. As I see it, systemic and background factors contributed to Mr. Kehoe being raised in a dysfunctional environment which in turn contributed to his substance use disorder and criminal offending. [71] I also consider it significant that Mr. Kehoe recognizes he needs to address his substance use disorder and has taken concrete steps to do so. The fact that Mr. Kehoe

has had a couple of relapses is concerning, but slips and relapses are a normal part of the recovery process. [72] The hardest sentencing decisions involve offenders who have committed serious offences but have a reduced level of moral blameworthiness. In this case, considering the aggravated nature of Mr. Kehoe's offence as well as his criminal record, reduced level of moral blameworthiness and efforts at rehabilitation, I would impose a sentence of 4 years' imprisonment less time served. I would not disturb the ancillary orders made by the judge. [82] With these sentencing and Gladue principles in mind, I consider the specific offences and Ms. Barker's specific circumstances for an assessment of an appropriate sentence. B. Offence-Specific Provisions [83] Here, in the circumstances of the Crown proceeding by indictment, the specific offences are aggravated assault contrary to s. 268(2) of the Code, which specifies a maximum sentence of 14 years imprisonment; and assault with a weapon contrary to s. 267(a) of the Code, which specifies a maximum sentence of 10 years imprisonment, indicative of the seriousness of the offences. C. Range of Sentence / Parity [84] Although sentencing is an inherently individualized exercise, s. 718.2(b) of the Code stipulates that sentences "should be similar to sentences imposed on similar offenders for similar offences committed in similar

circumstances". [85] The Crown submits that the range of sentence for aggravated assault is between 16 months and 6 years' imprisonment, see R. v. Craig, 2005 BCCA 484, in which Justice Kirkpatrick stated: [10] The range of sentence for similar offences was described as being between 16 months and six years in R. v. Johnson ...two years less a day to six years in R. v. Biln ... and, most recently, between 18 months and six years in R. v. Willier .. .In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end. See in particular: R. v. Willier ... and R. v. Johnson ... [Emphasis added.] [86] See also R. v. Kawerninski, 2023 BCSC 377 at paras. 5-7, citing Craig, and R. v. Nguyen, 2016 BCCA 408 at para. 47 for similar principles, and adding: [6] Parity is an important principle in criminal sentencing - the notion, that is, that similar offenders who commit similar crimes in similar circumstances should receive similar penalties. That said, sentencing is an individualised process, and each case falls to be decided on its own facts and the circumstances of each offender. Sentencing ranges set out in precedent cases are not grids or straightjackets, merely guidelines,

and I recognise that, in appropriate circumstances, below-range sentences are sometimes imposed for aggravated assault. [87] The defence does not take issue with the Crown's submissions on the range, but emphasizes the point just made that the range is a guideline, not defining a mandatory minimum or a box within which the court is confined. Crown Cases [88] The Crown cites R. v. Foster, 2008 BCSC 1368 for support of its submissions that the two convictions for aggravated assault and assault with a weapon are not subject to the rule in Kienapple as each offence has an additional element not found in the other. [89] The Crown refers to number of cases on the parity principle, with facts the Crown submits are similar to the case at bar, as follows. Kehoe BCCA and R. v. Kehoe, 2021 BCSC 2474 [Kehoe BCSC] [90] The Crown refers to Kehoe BCCA regarding application of the Gladue principles, as I have already reviewed above. [91] The trial court decision in Kehoe BCSC involved a single count of aggravated assault resulting in a sentence of 5 years' imprisonment less time served, which was reduced on appeal to 4 years' imprisonment less time served. [92] The offender was Indigenous, the assault was with a kitchen knife causing two stab wounds resulting in a punctured lung and pierced liver in the victim. The circumstances were that Mr. Kehoe heard loud music from the parking lot of his

building. He saw the victim and two friends playing music. He yelled at them and threw eggs at them. He went to the external door of the apartment building to confront them. There was a short physical confrontation between Mr. Kehoe involving some pushing and shoving. The three men walked away. Mr. Kehoe returned to his apartment. He then left the apartment with a kitchen knife and followed the three men. Two of them retreated across the road. The intoxicated victim remained on the sidewalk and raised his hands with his palms facing forward. Without provocation, Mr. Kehoe stabbed the victim twice, once in the chest and once in the side. The victim underwent surgery to repair the punctured lung and the lacerated liver. Without surgery, he would have died. He had a long course of recovery in hospital and after his release. [93] The Crown and defence agreed that there was some element of premeditation in the offence, but the entire incident occurred over the span of approximately ten minutes. There was no victim impact statement. [94] Mr. Kehoe had a significant prior record of violent offences and was out on bail from a prior offence of threatening at the time the offence occurred. [95] I found Kehoe to be useful in its review of the Gladue principles. The facts are similar to this case in relation to the unprovoked knife attack against a vulnerable victim; however, Mr. Kehoe had

an extensive prior record of violent offences, the wounds were more serious as life-threatening, involving surgery and a long recovery, thus more significant than in this case. There was more premeditation in Mr. Kehoe returning to his apartment after the initial confrontation, he then left with a knife and followed the victim before stabbing him. The premeditation was considered somewhat limited given the timing of the entire incident within a time span of approximately ten minutes. R. v. Larose, 2023 BCPC 174 [96] In Larose the Indigenous offender stabbed the unarmed victim in the back, causing extremely serious injuries including a lacerated artery, massive blood loss and ultimately loss of a kidney. It was an unprovoked attack by the offender and an accomplice, the victim apparently mistakenly identified as the boyfriend of a woman associated with them. [97] The offender suffered from various mental health disorders, he had little insight into his drug addiction and did not find substance use programming to be helpful; his lack of remorse was an absence of a mitigating factor instead of an aggravating factor, but his lack of remorse was relevant to the court's assessment of his prospects for rehabilitation. [98] The Crown notes distinguishing characteristics from Ms. Barker's case include the offender's extensive criminal record and commission of the offence while on bail

for another stabbing. The offender was sentenced to 5.5 years of incarceration R. v. Parker, 2023 BCSC 2259 [99] Parker involved a premeditated and unprovoked stabbing of a vulnerable victim from behind, giving the victim no opportunity to defend himself. The victim was stabbed in the neck, including an injury to his spinal cord, which was described as a severe injury, altering his life permanently and significantly. The assault arose from tensions between the victim and offender relating to housing and a drug debt owed by the victim to the offender. [100] The non-indigenous offender had an extensive criminal history, including multiple convictions for violent offences. He was sentenced to 4 years and 6 months imprisonment R. v. Milne, 2021 BCCA 166 [101] The Crown refers to Milne on the issue of mental health in the commission of an offence, which responds to the defence submission that Ms. Barker's mental health issues reduce her moral blameworthiness for commission of the offence. [102] The mental health aspect of Ms. Barker's case is of some complexity, for which I provide some context, as follows: a) Most notably for the purposes of sentencing, a psychiatric or psychological opinion was requested by the Court to assist with sentencing, with emphasis on the need for such a report in Ms. Barker's specific circumstances. Despite adjournments of the sentencing hearing to

facilitate that request, no such opinion has been prepared, the reasons given by Forensic Psychiatric Services being attempts having been made to schedule and conduct an assessment of Ms. Barker, described in their letters dated April 29, 2024 and September 25, 2024, as summarized above. b) The pre-sentencing report refers to Ms. Barker's self-report of anxiety, PTSD and a brain injury; a BC Corrections file with reference to Ms. Barker having a history of self-harm resulting in hospitalizations and a BC Corrections file note indicating that in 2023 Ms. Barker was certified under the Mental Health Act and she received injections for psychosis administered by the Cool Aid Medical Clinic. c) The Gladue Letter refers to mental health as reported in the PSR as reported by Ms. Barker as anxiety, PTSD and a brain injury. The Gladue letter also refers to Ms. Harry from ACEHS reporting that Ms. Barker was diagnosed with a mood disorder for which she has been medicated on and off. d) Ms. Barker's submissions to the Court mentioned her having recently taken medication which I understand she credits with being helpful for her mental state. [103] I recognize that Ms. Barker's mental health status may be a factor in the lack of psychiatric evidence before the Court for the purposes of this sentencing; however, a number of efforts have been made to have a psychiatric report prepared for the

purpose of sentencing, without success, and most, but not all of the time that has passed since Ms. Barker was found guilty has been as a result of Ms. Barker not attending scheduled appointments and refusing to participate in the assessment. [104] Section 720 of the Code provides that a court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed. [105] In response to the defence suggestion about the possibility of a "mini-assessment", in my view it is not in the interests of justice for sentencing to be delayed any further to make another attempt to have a psychiatric report prepared because it has now been over a year since my decision finding Ms. Barker guilty, and almost four years since the date of the offence. [106] The question is what use may be made of the evidence of Ms. Barker's mental health issues, primarily from her own self-reporting, and no expert medical opinion evidence. [107] In Milne, a ground of the Crown's appeal of the sentence imposed for sexual assault was that the Crown alleged that the trial judge erred in treating the offender's mental health as a significantly contributing factor in the commission of the offence that attenuated his moral culpability. [108] At the sentencing hearing a forensic psychological report was in evidence, the opinion being that the

offender presented as a moderate risk for suicide/self-harm and sexual reoffending, but significantly for the Court of Appeal, the report did not suggest that the offender's mental illness or misuse of medication caused or contributed to his commission of the offences. [109] The Court of Appeal in Milne discussed the consideration of mental health in sentencing as follows: [45] Cases involving mental illness are inevitably and intensely fact-driven. While the presence of mental illness at the time an offence is committed is part of the relevant context, it is not automatically a mitigating factor. Rather, in each case, the judge must make a determination based on the whole of evidence on whether, and, if so, to what extent, the mental illness contributed to the criminal conduct and if it diminished the offender's moral culpability: Badhesa at paras. 35, 43-44; Pond at para. 38. [46] In my view, the judge erred by treating Mr. Milne's state of mental health as a significantly contributing factor in the commission of the offences that attenuated his moral culpability. I see no evidence in the record to support that conclusion. Although Mr. Milne's acute depression and misuse of prescription medication were undoubtedly relevant contextual factors, the only evidence that they played a contributing role in his depraved conduct in sexually assaulting A.D. and later transmitting the

pornographic images was his own assertion to that effect and the temporal coincidence of his mental health crisis and the offences. However, Mr. Milne's assertion that his mental health and medication played a part in his offending was unsupported by any medical evidence to explain the nature and extent of the causal link or contribution, if any. [47] Without more, in my view, a mere temporal coincidence was an insufficient basis for an informed decision to be made as to the relationship between the state of Mr. Milne's mental health and his criminal conduct: see R. v. J.M.O., 2017 MBCA 59 at para.

73. As Justice Fitch observed in Penttila, "[t]he attachment of a medical label to an identified cluster of behaviours for diagnostic and treatment purposes does not mean that the diagnosis will always be mitigating": at para. 68. [48] This was not a case like Badhesa, in which a forensic psychiatrist testified that a combination of alcohol and acute psychotic depression marked by delusions, perceptual disturbances and auditory hallucinations both contributed, in a "chicken-and-egg" relationship, to the offender acting in an uncharacteristically violent manner: at paras. 8-12. As this Court went on to explain, in cases involving a combination of mental illness and intoxication "[d]etailed and specific medical evidence is essential to a proper understanding of their relationship if any, as well as their impact on the offender's moral culpability. Generalizations are insufficient": at para.

43. In my view, such evidence was absent in this case. [Emphasis added.] [110] Here, there is some evidence that Ms. Barker was intoxicated at the time of the offence, and some evidence that she is affected by mental health issues. [111] I have considered the intoxication point in the context of the incident, and mental health in a very general context; however, the impact of those issues, if any, on the commission of the offence, and consideration of those issues as mitigating factors, relies to a great extent on the submissions of the defence that the offence "appears to be driven by substance misuse, impulsivity and a lack of emotional regulation, not uncommon for individuals with a brain injury", that defence submission itself not supported by sufficient evidence to find that mental health impacts Ms. Barker's moral culpability with respect to these specific offences, with reference to the PSR and Gladue Letter self reporting by Ms. Barker, some BC Correction file references, and the letters from two case managers at the Victoria Brain Injury Society that Ms. Barker has accessed services there since April 2021. [112] Applicable here is a quote from Milne, above, that the "assertion that his mental health and medication played a part in his offending was unsupported by any medical evidence to explain the nature and extent of the causal link or contribution, if any." [113]

Also applicable here, as stated in Milne, above, in cases involving a combination of mental illness and intoxication, and quoting Badhesa: "[d]etailed and specific medical evidence is essential to a proper understanding of their relationship if any, as well as their impact on the offender's moral culpability. Generalizations are insufficient." [114] Further, there is limited evidence of Ms. Barker's specific circumstances of her mental state in 2021 when the offence occurred. The PSR refers to some events in her past from a 2015 pre-sentencing report and more recent circumstances in 2023 and 2024 from BC Corrections files and interviews, but her specific circumstances in 2021 are left to some speculation, other than the witnesses' observations of her on the night of the offence. [115] The PSR and Gladue Letter refer to Ms. Barker being unhoused the "last three or four years" after beginning to abuse alcohol and drugs after her children were removed shortly after her fourth child was born. [116] I understand from the PSR that her fourth child may have been three years old in 2024, and the PSR and Gladue Letter are dated in 2024, hence these references to beginning to abuse alcohol and drugs, again, may have been in 2020 or 2021. As a result, 2021 may have been a significant year with respect to her housing and substance abuse; however, the evidence is not clear regarding the

specific circumstances of Ms. Barker's mental health and alcohol and drug use at the time of the offence, other than her drinking beer that night, and her demeanour changing from friendly before she left the apartment for a short period of time, to more angry when she returned. Defence Cases [117] Defence counsel referred to a number of cases, summarized as follows: R. v. Nicholls, 2013 BCSC 1145 [118] In Nicholls, the offender was convicted of aggravated assault and assault with a weapon, a knife, involving an unprovoked stabbing to the victim's neck, resulting in two penetrating stab wounds and scrape marks which were not life-threatening. The victim had teased the offender prior to the attack. A psychiatrist opined the attack appeared to be an extremely impulsive act, which followed the victim likely teasing the offender. A contributing factor according to the psychiatrist was the offender having been taunted and bullied as a child. [119] Mitigating factors were the offender's youth, age 21, he was Indigenous, he had no criminal record, he was on bail without incident for more than two years, and he had made successful attempts at gainful employment and rehabilitation. [120] The offender received a suspended sentence, with 30 months probation. [121] Here, Ms. Barker is not as young, she has a relevant criminal record, and she has not been on bail without incident. R. v.

Sultan, 2007 BCSC 849 [122] In Sultan the offender with no criminal record was found guilty by a jury of aggravated assault. After an argument and pushing between co-workers in a restaurant, in which the offender received some punches to the head, the offender went to the kitchen, selected a knife, then returned to the dining area where he repeatedly stabbed his co-worker in the head, face and hands. The attack was only stopped by the cook breaking a chair across the back of the offender. [123] The court found it to be a retaliatory act of revenge and sentenced the offender to one year imprisonment and two years' probation. [124] Here, while the circumstances of the incident have some similarities to Ms. Barker's case, albeit there of greater gravity, and apparently including some provocation, Ms. Barker has a relevant criminal record. Also, in Sultan, the court's reasons involve limited analysis and make no reference to other cases for comparison. R. v. Fraser, 2009 BCSC 1789 [125] In Fraser the offender was convicted of four counts of aggravated assault, one count of assault using a weapon, one count of assault, and one count of having a weapon for a purpose dangerous to the public. [126] The offender with no criminal record reacted aggressively after being criticized, he struck a victim in the face, briefly rendering him unconscious, then the offender and his brother were

escorted by a group of people to their car during which the offender was struck several times. The offender and his brother then returned and attacked the group. The offender stabbed four people with a knife; the victim impact was significant, the most serious injury being a life-threatening stab to the leg of one complainant, who was hospitalized for six days. [127] The offender was sentenced to 15 months jail and two years probation. Each of the four sentences for aggravated assault were 15 months to be served concurrently, and for assault with a weapon a sentence of 12 months concurrent. [128] I note that the Crown submits based on the basis of this case that for Ms. Barker, the 12 month sentence would be appropriate for her conviction on assault with a weapon, to be served concurrently with the Crown's suggested sentence for aggravated assault. R. v. Rose, 2012 BCCA 453 [129] Rose was an unsuccessful appeal of a conviction for unprovoked aggravated assault in the workplace. The sentence was 18 months jail with 3 years' probation. The offender was an Indigenous offender with a criminal record for violent crimes. The victim and the offender exchanged angry words; the offender threw sticks and other material at the complainant's loader; the offender threw a rock which struck the complainant near the eye and caused serious injury. The complainant was left with limited vision in

the eye two and a half years later. Mitigating factors were his long work history and possible mental health issue. [130] As a general comment on the cases referred to by the Crown and defence regarding distinguishing features, I note the Crown's cases generally appear to involve offenders with a more extensive criminal record than Ms. Barker, and the gravity of the offences are greater in terms of the violence and impact on the victims, while the defence cases are generally older cases in which the offender in three of the four cases had no criminal record; the fourth, Rose, involved a thrown rock, not a stabbing. [131] As a general proposition, in my view those distinguishing features relating to the principle of parity, or comparable cases, narrows the range of an appropriate sentence to something greater than the defence's upper end of the range of 12-16 months imprisonment, plus probation, and lesser than the Crown's lower end of the range of 36-48 months imprisonment. VI. Discussion A. Proportionality and Moral Blameworthiness [132] The fundamental principle of sentencing is that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Code, s. 718.1. [133] Ensuring that a sentence reflects the gravity of the offence is closely tied to the objective of denunciation; it promotes justice for victims and ensures

public confidence in the justice system: R. v. Ipeelee, 2012 SCC 13 at para. 37. [134] Gravity of the offence refers to the seriousness of the offence generically, as reflected by the potential penalty imposed by Parliament, and any specific features of the commission of the crime, which may tend to increase or decrease the (risk of) harm to the community. Gravity of the offence lies in the nature and comparative seriousness of the offence, the circumstances of its commission, and the harm caused by it: R. v. Kurek, 2018 SKQB 168 at para. 34. [135] Ensuring that a sentence reflects the degree of responsibility of the offender ensures it does not exceed what is appropriate given their "moral blameworthiness"; it serves a restraining function and ensures justice for the offender: Ipeelee at para. 37. [136] An offender's moral culpability is reflected in the central substantive elements of the offence, especially the fault component, and any specific aspects of the offender's conduct or background which tend to increase or decrease the offender's personal responsibility for the crime": Kurek at para. 34. [137] Assessing the moral culpability of an offender also requires considering the "intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct": R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 80, 1996 CanLII 230. [138] Proportionality is determined both on an individual basis (in relation to the accused and the offence they committed) and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a proportionate sentence: R v. Lacasse, 2015 SCC 64 at para.

53. B. Aggravating and Mitigating Circumstances A. Aggravating Circumstances [139] The Crown submits, and I agree, that the following aggravating factors exist in this case: a) Stabbing to the face is dangerous and carries a significant amount of risk, being within inches of the eye and the neck; b) There is an element of planning the attack - Ms. Barker left the apartment for a brief period of time, up to a minute or two, then decided to return wielding a knife and stabbing Mr. O'Meara without any warning. There may also be an element of impulsiveness in Ms. Barker's return to the apartment to stab Mr. O'Meara, but Ms. Barker could have simply left the building and not returned. Her decision to return and stab Mr. O'Meara with a knife was a deliberate decision to return and commit a violent act with a weapon; c) Ms. Barker used a deadly weapon (a knife), and possessed other weapons that evening, at least one other knife and a BB gun; d) The attack was unprovoked; e) The victim was attacked from behind, without opportunity to defend himself; f) The victim was unarmed; g) Ms. Barker fled the scene and did not seek to render any assistance to the victim; h) Ms. Barker's criminal history, particularly her conviction for violence and a breach of a release order; and i) The victim is left with a scar on his face from the attack, although well-healed, and one of the victim's teeth

was chipped. [140] The defence did not take issue with the Crown's list of aggravating factors, other than the defence submission that there is a lack of evidence pointing to planning or premeditation, the defense submitting it was an act of impulsiveness; however, Ms. Barker's decision to not leave the building, but to return to the apartment and stab Mr. O'Meara, even if that delay in her return was for only a minute or two, is evidence of a deliberate choice made by Ms. Barker to return to the apartment with a knife in her hand and stab Mr. O'Meara, which I infer to be a retaliation against Mr. O'Meara for his forceful demand that she leave the apartment, after a number of more respectful requests that she leave. [141] I have not included in this list of aggravating factors the Crown's submission that Mr. O'Meara was intoxicated and as a result more vulnerable as a result of his intoxication, and also that Ms. Barker's use of derogatory slurs is a statutory aggravating factor. [142] The Crown is required to prove the facts that constitute aggravating circumstances beyond a reasonable doubt: see s. 724(3)(e) of the Code and R. v. D.B., 2008 SCC 25 at para. 164, quoting R. v. K.D.T., 2006 BCCA 60 at para. 62. [143] Regarding Ms. Barker's undisputed use of derogatory slurs by calling the victim and his friend "fags", which precipitated Mr. O'Meara asking, then demanding that

Ms. Barker leave the apartment, the Crown submits that Ms. Barker's comments are a statutorily aggravating factor by virtue of s. 718.2(a)(i) of the Code which includes as an additional principle that a court shall also take into consideration evidence that the offence was motivated by bias, prejudice or hate based on sexual orientation, or gender identity or expression, or on any other similar factor. [144] The question is whether Ms. Barker calling Mr. O'Meara and his friend fags in response to them drunkenly expressing love for each other was a motivating factor in the offence. [145] Ms. Barker's derogatory remarks certainly precipitated Mr. O'Meara asking Ms. Barker to leave the apartment, which then escalated to a more heated exchange in which Mr. O'Meara forcefully demanded that Ms. Barker leave the apartment, following which Ms. Barker left and then shortly thereafter returned and stabbed Mr. O'Meara; however, it is not clear if a motivating factor in the offence - that is, a cause or influence of Ms. Barker's action in committing the offence - was the sexual orientation nature of the remarks, or whether the offence was motivated more simply by Ms. Barker's reaction to the heated exchange with Mr. O'Meara and his forceful demand that she leave the apartment when she refused to stop making those remarks. [146] Although there is no doubt that Ms. Barker's comments were

important in the context of the heated exchange between Mr. O'Meara and Ms. Barker that ultimately led to Ms. Barker leaving the apartment and then returning to the apartment shortly thereafter, in my view the Crown has not proven that the offence was motivated by a statutory aggravating factor pursuant to s. 718.2(a)(i), that is, as motivated by bias, prejudice or hate based on sexual orientation by Ms. Barker calling Mr. O'Meara and his friend fags. [147] The Crown also refers to Mr. O'Meara being intoxicated and more vulnerable because of his intoxication; however, since Mr. O'Meara was stabbed from behind without warning immediately after Ms. Barker returned to the apartment, there is no evidence that the state of Mr. O'Meara's intoxication affected his ability to defend himself from, or left himself more vulnerable to an unprovoked, fleeting surprise attack from behind. He was vulnerable because he had no opportunity to defend himself from a surprise attack from behind. [148] As a result, I find that the Crown has not proven beyond a reasonable doubt that Mr. O'Meara being intoxicated is an aggravating factor B. Mitigating Circumstances [149] I agree with the Crown that one mitigating factor is the Gladue factors. [150] The Crown also refers to the period of time that Ms. Barker was subject to strict house arrest while under judicial interim release from October 16, 2023

to February 28, 2024. [151] Although restrictive bail conditions such as house arrest can be a mitigating factor, given Ms. Barker's apparent difficulty in complying with some release conditions as I have summarized above, and specifically in ending the house arrest by breach of a condition, I do not consider that period of house arrest to be a mitigating circumstance: see R. v. Plowman, 2015 BCCA 423 at paras. 27-29. [152] The defence submissions did not specifically refer to mitigating circumstances other than emphasizing the Gladue factors, while also referring to intoxication and Ms. Barker's mental health. [153] The onus is on Ms. Barker to prove contested facts in support of mitigating factors on a balance of probabilities: see s. 724(3)(e) of the Code and D.B. at para. 164, quoting K.D.T. at para. 62. [154] I have discussed the issue of Ms. Barker's mental health above, with reference to the Milne case, as a consideration of the context of the offence. [155] Regarding intoxication, the defence submits that intoxication was a significant and contributing factor, referring to the alcohol consumed and the two witnesses' evidence of a change in Ms. Barker behaviour at some point in the evening. [156] As stated in R. v. P.R.J., 2023 BCCA 169, the Court of Appeal, citing Milne, was critical of the trial judge making assumptions about the contribution of substance use and

mental health to the offence, as follows: [59] In my view, the reasons for sentence reflect a finding of diminished moral blameworthiness based on mere assumptions about the contribution of PRJ's substance use and mental health to her sexual offending: R. v. Milne, 2021 BCCA 166 at paras. 46-48 [Milne]. Applying the harm-based analytical approach mandated by Friesen, PRJ's personal responsibility was properly at the high end. [Emphasis added.] [157] Here, the evidence of Ms. Barker's intoxication is Mr. O'Meara's testimony that after he demanded she leave the apartment she could call him when she was sober, and the evidence of Mr. O'Meara that he purchased Corona Lite beers for Ms. Barker to drink, and that she drank the beer, the quantity uncertain, but possibly up to eight cans of beer. [158] Regarding Ms. Barker's change in demeanour, as previously noted there is no evidence that her change in demeanour was associated with her drinking alcohol, it appears from Mr. O'Meara's evidence to have been influenced by an issue with her children when she left the apartment for a period of time following her receipt of a telephone call. Her demeanour was described as very friendly before she left the apartment, and her demeanour had changed to a more angry tone when she returned to the apartment. [159] I agree that Ms. Barker was likely intoxicated from her consumption of beer that

evening, and it was likely a factor in the offence, but the evidence is insufficient to support a finding that it was a significant and contributing factor to the offence. C. Gladue Principles / Sentencing Considerations for Indigenous Offenders [160] Ms. Barker is a member of the Yuułuʔiłʔatḥ (Ucluelet) First Nation through her maternal lineage. She has lived in Victoria for most of her life. She has had limited exposure to her Yuułuʔiłʔatḥ culture and Nation. [161] Given Ms. Barker's Aboriginal heritage, s. 718.2(e) of the Code has special importance. It provides: [A]ll 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. [Emphasis added.] [162] I have referred to the Gladue principles above as summarized in Kehoe BCCA. [163] The author of the Gladue Letter notes that the Letter was written primarily based on information provided by Ms. Barker's mother, Roberta Touchie, and an ACEHS staff member, Wilhemena Harry, and from information in the PSR. [164] The Gladue Letter summarizes the Gladue factors with reference to Ms. Barker's circumstances as follows: a) Family Relationships and Indigenous Background: Ms. Barker was raised by her mother as her main caregiver with

the involvement of her father who died when she was 22. Ms. Barker's four children are in the care of her older sister, and at the date of the Gladue Letter Ms. Barker was is in the process of signing over guardianship of her children to her sister Sally. b) Forced Attendance at Indian Residential Schools: Ms. Barker's mother and both of her maternal grandparents were forced to attend the Port Alberni Indian Residential School. Ms. Touchie's experiences, as reported to the Gladue author, included sexual assault, beatings and malnourishment. The impact of those experiences led her to become depressed and suicidal, she could not look after her children and attempted suicide when the children were young. c) The Normalization of Violence: Ms. Touchie reported Ms. Barker having witnessed conflict between her parents throughout her childhood and adolescence. Ms. Touchie was physically assaulted by Ms. Barker's father while pregnant with Ms. Barker. d) Racism and Systemic Discrimination of Indigenous Peoples: Ms. Touchie reported that Ms. Barker experienced racism and discrimination by her peers and teachers in elementary school. One incident of the school principal twisting Ms. Barker's arm as discipline in Grade 4 led to her parents taking her out of school for the remainder of that year. Ms. Touchie believed that incident to have been fuelled by racism. e) Sexual Abuse: Ms. Touchie

reported that Ms. Barker was raped at just 11 years old by a teenage male in a family friend's house, leading to a violent episode between one of the other family member and Ms. Barker's father. f) Substance Abuse and Addiction: Ms. Touchie reported Ms. Barker began using illicit substances shortly after being raped at 11 or 12 years old, and has continued her abuse of alcohol and narcotics throughout her adult life. g) Intimate Partner Violence and Street Violence: Ms. Touchie reports that Ms. Barker has been exposed to both intimate partner violence and a number of assaults while being unhoused, including assaults. h) Poverty and Homelessness: Ms. Touchie and Ms. Harry reported that Ms. Barker has been unhoused for the last three or four years save and except when staying with her mother Ms. Touchie. Ms. Barker experiences poverty, she relies on a disability pension from the Province. i) Community Fragmentation and Displacement: Ms. Barker has spent her life living in Victoria, disconnected from the Yuułuʔiłʔatḥ First Nation community. She had been involved with some aspects of indigenous culture through ACEHS activities, and has expressed interest and enjoyment in cultural activities. j) Family Breakdown or Disruption: Ms. Barker's parents separated when she was just a newborn and her own children are currently in the care of her sister. The Letter refers to Ms. Barker

separating from an abusive and dysfunctional relationship with her children's father. k) Mental Health: The Letter refers to the PSR reference to Ms. Barkers' reports of anxiety, post-traumatic stress disorder, a brain injury, self harming behaviours and attempted suicide. Ms. Barker's submissions referred to some recent success with counselling and medication while she has been in Alouette. l) Low Levels of Educational Attainment: Ms. Barker did not regularly attend school after Grade 4 and has recently completed the equivalency of Grade 11, continuing to work towards her Dogwood Diploma. m) Indian Residential School (IRS) Intergenerational Effects: Ms. Touchie expressed longstanding impacts to her own mental health as a result of forced attendance at IRS. n) Justice System Involvement and Ministry of Children and Family Development (MCFD) Involvement: Ms. Barker has faced incarceration and had her children apprehended by MCFD. [165] The Gladue Letter concludes with a list of community resource organizations that Ms. Harry of ACEHS identifies as those Ms. Barker has been involved with relating to issues such as housing, food, health, education, mental health, addiction, and cultural support, including ACEHS and the Victoria Brain Injury Society already referred to above, and the Victoria Native Friendship Centre, Our Place Society, SOLID Organization, and Community Health

Services - Cool Aid Society. [166] The work of those associated with these organizations who have been in contact with Ms. Barker, as described in the Gladue Letter and the PSR, specifically as they relate to the assistance they have provided to Ms. Barker is laudable; however, despite these efforts, Ms. Barker's experiences in the community since the present offence in 2021, provides evidence that, despite these community resources and assistance, and the support of her family, particularly her mother, she has been subject to influences and instability which have led her to this Court. [167] By contrast, it appears that while she has been incarcerated at Alouette since November 25, 2024, by her own self-report she has been involved in activities and worked hard on herself, which appears to have stabilized her mental state and environment to the point where she describes herself as a changed person, by which I understand her to mean changed in a positive sense. [168] Her current apparently self-awareness and recognition of her need to address and work on her substance abuse, to be involved in counselling and medical treatment for her mental health issues, and to further her education, work, and involvement in cultural activities, all appear to bode well for stabilizing her personal circumstances. [169] Following completion of her term of imprisonment, I consider a term of

probation to be appropriate to allow Ms. Barker to use what she has learned at Alouette, with support and supervision, to transition back into the community. The purpose of probation is to give Ms. Barker a further opportunity to rehabilitate herself, to facilitate her transition and reintegration into the community, and to protect society: see R. v. Mathieu, 2008 SCC 21 at para. 20. [170] The Gladue factors are very relevant to this sentencing. I have taken those factors into account, both as general background factors and factors to be considered under s. 718.2(e) of the Code. [171] The systemic and individual Gladue factors bear a direct and causal connection to this offence. The history of colonialism, Ms. Barker's family members' attendance at the Port Alberni Residential School, the sexual abuse she suffered at a young age, her commencement of substance misuse at a young age, her witness to domestic violence and her history as a victim of violence are all factors which are linked to her offending. [172] The question is the extent to which these factors impact on the moral blameworthiness of Ms. Barker, and to what extent do these factors impact on an appropriate sanction? See Ipeelee at paras. 73 and 74. [173] In my view, Ms. Barker's background and present personal circumstances have been significantly shaped by the systemic and individual Gladue factors summarized above

as they have impacted Ms. Barker's life in a dysfunctional environment which have contributed to Ms. Barker's alcohol and drug abuse and criminal offending. [174] As a result, the Gladue factors have a significant impact on Ms. Barker's moral blameworthiness for the offences which have brought her before the Court today. [175] Consideration of Gladue factors is essential to ensure that the sentence is "proportionate to the gravity of the offence and the degree of responsibility of the offender": Ipeelee at para. 73. [176] Here, the gravity of the offence of stabbing Mr. O'Meara in the face with a knife is very serious as an unprovoked and very risky surprise attack on a victim who was in no position to defend himself, mitigated to a degree by Mr. O'Meara's calm, non-judgmental and stoic reaction to the attack, and his recovery. The degree of responsibility is diminished on account of the consideration of the Gladue factors. [177] Given the seriousness of the offence, Ms. Barker's previous breach of release conditions, and her criminal record including an unprovoked attack of a senior citizen while on bail for stabbing Mr. O'Meara, all highlight the need to consider public safety, for which I consider the need for some further imprisonment. VII. Sentence / Disposition A. Type of Sentence [178] The s. 718 sentencing principles that I consider come into play in this case and

deserve the greatest emphasis are the denunciation of unlawful conduct and the harm done to victims and the community; deterrence, both specific and general, and public safety. [179] Rehabilitation is also a significant principle, with Ms. Barker, according to her own self-reports, having already taken some steps in that direction at Alouette. [180] As I have already stated, further imprisonment is necessary, with a period of probation to facilitate transition from Alouette back into the community once Ms. Barker has completed her sentence. B. Sentence for Each Count [181] Ms. Barker, please stand. [182] As stated by the Court of Appeal in Kehoe BCCA: [72] The hardest sentencing decisions involve offenders who have committed serious offences but have a reduced level of moral blameworthiness. [183] I consider this case to be one of those cases, in which Ms. Barker's offence is a serious offence, but she has a reduced level of moral blameworthiness. [184] On Count 1 of aggravated assault of Adrian O'Meara on or about the 24th day of April 2021, at or near Langford, British Columbia, contrary to s. 268(2) of the Code I sentence you to two years and six months imprisonment less time served, followed by two years of probation. [185] On Count 2 of assault with a weapon of Adrian O'Meara on or about the 24th day of April 2021, at or near Langford, British Columbia, contrary to s.

267(a) of the Code, I sentence you to twelve months imprisonment, to be served concurrently with Count 1, followed by two years of probation. [186] Ms. Barker, you may sit down. C. Time in Custody [187] The Crown and defence agree that you have spent almost a year in custody on this offence, from June 19 - October 16, 2023 and then you returned to custody from November 25, 2024 to the present day. [188] The Crown and defence agree that in total you have spent 234 days in custody to the date of the sentencing hearing on March 14, 2025, and an additional 28 days from the sentencing hearing to today's date, April 10, 2025, for a total of 262 days in custody. [189] I am granting you 1.5 days' credit for each of these days and to have it treated as time already served. The credit I am granting you is thus 393 days. D. Actual Sentence (accounting for pre-sentence custody) [190] The sentence for Count 1 is two years and six months, which is 912 days. [191] Subtracting the credit of 393 days for time served results in the actual sentence being 519 new days. [192] The sentence for Count 2 is 12 months served concurrently with Count 1. VIII. Probation Order [193] Following the conclusion of your sentence, you must comply with a probation order for a term of two years. [194] The purpose of probation is to give you a further opportunity to rehabilitate yourself, to facilitate your reintegration into society and to protect society: see Mathieu at para.

20. Conditions of Probation Order [195] The conditions of your probation are: 1. You must keep the peace and be of good behaviour.

2. You must appear before the court when required to do so by the court.

3. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.

4. You must report in person to a probation officer at 836 Courtney Street, Victoria, B.C. within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your officer.

5. When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your probation officer in writing at least five days in advance of any change.

6. Your reporting ends when you have satisfied your probation officer that you have completed all your counselling and treatment, or that it is not required, and your officer has told you that you are no longer required to report.

7. You must have no contact or communication, directly or indirectly, with Adrian O'Meara and John Memnook.

8. You must not possess, directly or indirectly any weapon as defined by the Code, including: i. firearms and ammunition; ii. cross-bows, prohibited or restricted weapons or devices, or explosive substances; iii. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; iv. any imitation of all the above, including any compressed air guns or BB/pellet guns; or v. any related authorizations, licences and registration certificates, and you must not apply for any of these.

9. You must not possess any knives (or axes or other sharp-bladed instruments used, designed or intended to be used to cut things), outside your residence, except for the immediate preparation or eating of food. The exceptions are as follows: a. while on your property; b. while at work, or going directly to and from work. If asked, you must provide your probation officer with the details of your location and hours of employment; c. while wood carving relating to your Indigenous cultural heritage, or going directly to and from where you conduct such wood carving activities. If asked, you must provide your probation officer with the details of your location and hours of wood carving activities; d. with the prior written permission of your probation officer. You must carry the permission, which may be in electronic format, when you possess knives outside your residence.

10. You must not possess or consume alcohol, or controlled substances as defined in the Controlled Drugs and Substances Act, or any other intoxicating substance, except with a medical prescription.

11. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include but is not limited to counselling or programming for: a. anger management; b. violence prevention; c. alcohol or drug addiction; d. mental health; e. trauma recovery; f. parenting skills.

12. Having consented in court, you must do the following: 1. Report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment as directed by your probation officer.

2. Attend all scheduled appointments with the professionals in charge of your mental health care.

3. Take all medications and medical treatment prescribed to you by those professionals.

4. Provide your probation officer with the names, addresses, and phone numbers of those professionals.

5. Give those professionals a copy of this order.

6. If you decide not to follow these directions, you must immediately report that fact to your probation officer. You have consented in court to those professionals notifying your probation officer if you fail to attend for an appointment or refuse to take the prescribed treatment or medication.

13. Having consented in court: a. you must sign any document that is necessary for your probation officer, counsellors, or treatment providers to check your attendance, and completion, of any intake, assessment, counselling, or treatment program. b. if asked by your probation officer, you must provide proof of your attendance and completion of any assessment, counselling or treatment program. IX. Ancillary Orders Victim Surcharge [196] Pursuant to s. 737 of the Code, you are required to pay a victim surcharge in the amount of $200 for each indictable offence for a total of $400. [197] Given your circumstances of financial hardship, your counsel has requested on your behalf that the requirement to pay a victim surcharge be waived. [198] Pursuant to s. 737(2.1) of the Code, I am satisfied that because of your financial circumstances including your unemployment and receipt of disability benefits, homelessness and apparent lack of financial resources, I am satisfied that the surcharges would cause an undue hardship to you. [199] I order you to pay no surcharges. Restitution [200] The Crown seeks restitution pursuant to s. 738(1) of the Code, in the amount of $722.93 payable by you to the Clerk of the Court for the benefit of Adrian O'Meara. [201] From the documents in evidence, that amount appears to be a portion of the ambulance fee charged to Mr. O'Meara after he was transported

to Victoria General Hospital following the incident. [202] The original fee appears to have been $848.00 as indicated on a past due notice, with a balance of $427.00 plus $295.93 in interest for a total of the $722.93 noted on a collection agency notice of debt assignment, suggesting that $421.00 of the original fee was paid at some point. [203] Pursuant to s. 737.1(1) and (5) of the Code, in considering whether to make an order for restitution, the ambulance fee arose from your conduct in stabbing Mr. O'Meara in the face, causing what appears from the photographs to be extensive bleeding, and a cut to Mr. O'Meara's cheek that required attendance at the hospital for stiches to his face, which fortunately appears to have healed well, leaving a faint scar. [204] I am reluctant to order that you not pay restitution to Mr. O'Meara; however, for the same reasons that the victim surcharge has been waived, that is, that your financial circumstances including unemployment and receiving disability benefits, homelessness and apparent lack of financial resources, I decline to make an order that Ms. Barker pay restitution. [205] As a result, I order you to pay no restitution for the benefit of Mr. O'Meara. DNA Sample [206] You have been convicted on Counts 1 and 2 of primary designated offences as defined in s. 487.04 of the Code. Pursuant to s. 487.051(1) of the Code I make an order in

Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Data Bank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. This order is valid until executed. Firearms and Weapons Prohibitions [207] You have been convicted on the indictable offences in Counts 1 and 2 where violence was used. [208] Pursuant to s.109(2) of the Code, you are prohibited from possessing: (i) any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, prohibited or restricted weapon, ammunition, and explosive substance for a period of 10 years following your release from imprisonment. (ii) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. "Jones J."