Courts must give special consideration to restorative approaches to sentencing, particularly in cases involving Aboriginal persons, but not scrutinize minutely a person’s Aboriginal status for the purposes of applying the provisions of 718.2 (e) of the Criminal Code.

Native Law Centre Case Watch

The accused pled guilty to a single count of possession of cocaine for the purpose of trafficking. This case follows soon after the sentencing decisions which this court rendered in R v AL, 2018 NSPC 61 and R v Livingstone, 2018 NSPC 62 that are currently under appeal. There are some differences between these cases and this matter such as the circumstances of the offences and the biographies of the accused. The court, however, imposes the same sentence upon the accused in this matter as in R v AL and R v Livingstone because the seriousness of the offences and levels of moral culpability are similar.

The accused is only 28 years old, has no record and enjoys abundant family support. He did well in school, is in a common-law relationship and has children that he is involved with. He is also employed and described as a reliable worker. The presentence report informed the court that the accused holds a status card from the Confederacy of Nova Scotia Métis. He has never resided in an Aboriginal community, does not speak an Aboriginal language or is connected to an Aboriginal culture.

It is not for the court, however, to scrutinise minutely the Aboriginal status of a person for sentencing and applying appropriately the provisions of 718.2(e) of the Code (R v McInnis, 2019 PECA 3). Sentencing courts must give special consideration to restorative approaches to sentencing, particularly in cases involving Aboriginal persons (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218). A person’s Aboriginal status, however, depends on more than producing a card (Daniels v Canada (Indian Affairs and Northern Development), [2016] 3 CNLR 56, [“Daniels”]). Daniels makes clear that Aboriginal rights are community-held rights inherent in a distinct, rights-bearing collective. It is unclear if the accused self identifies as Aboriginal. The accused’s status was not argued or advanced by his defence counsel, and it is not necessary for the court to decide the validity of it.

The accused’s conduct might be seen as more voluntary and calculated for profit and less driven by dependency or need. The accused had no aggravating factors under the statute, nor was there evidence of weapons or violence, and he cooperated with police. This combined with an early guilty plea, bail compliance and good prospects for rehabilitation, is why the court suspends the passing of sentence, and places the accused on probation for three years with conditions.