Appeal allowed. The Justice of the Peace is required to consider Gladue factors in crafting an appropriate sentence. This was an error in law that justified an appellate intervention. A conditional discharge is a fit sentence for the appellant.
Indigenous Law Centre
Indigenous CaseWatch Blog
The appellant was at home, and while intoxicated and arguing with her spouse, assaulted her 15-year-old-daughter who attempted to intervene. The accused plead guilty and received a suspended sentence with nine months probation and a $100 victim fine surcharge. This is an appeal of that sentence on the grounds that the Justice of the Peace failed to consider Gladue factors, made impermissible statements about the accused, and deferred to the Crown’s position as presumptively reasonable.
It was determined in this appeal that the sentencing Justice of the Peace made an “impermissible speculation” about the accused’s lack of previous criminal record (R v Morrissey, 22 OR (3d) 514). The presumptive reasonableness of the Crown’s position was reviewed, and it was decided that the Justice of the Peace accepted the recommendation without considering the Defence recommendation. Any official deciding on an appropriate sentence must hear and consider both positions before deciding on a sentence. Further, there was no consideration of whether a conditional discharge would be appropriate, and this impacted the sentence. After considering these factors, and the role and value of Community Justices of the Peace, it was determined that the Justice of the Peace made a significant error in law as well as errors in the principle that affected the sentence in the case.
In deciding the sentence, the circumstances of the offender, and the applicable sentencing principles, including aggravating and mitigating factors, were considered. The Court followed s 718.1, which requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The charge of assault is statutorily aggravated under ss 718.2(a)(ii.1) and (iii) because it was committed on a person under the age of 18, to whom the appellant was in a position of authority, as her mother. The mitigating factors of the case included the fact that the appellant demonstrated remorse by pleading guilty early on and stated she was sorry for what she had done; she was 35 with no prior record; her future employment would be put at risk with a criminal record; the assault was relatively minor and no injuries resulted; as well the Gladue factors of overcrowding and victimization of Indigenous offenders were also taken into account.
The Court determined that it would be in the best interests of the community of Rankin Inlet to see that a history of employment and good behaviour be given substantial weight, as this is a guilty plea to a single, one-time breach of the law. It was determined that the Inuk first offender should be given a chance to show that it was an isolated incident from which she learned an important lesson, and also to avoid a criminal record which could significantly impact her ability to find future employment. The appeal is allowed and she is sentenced to a conditional discharge which will not result in a criminal record. This appeal was held after the Supreme Court of Canada declared victim fine surcharges unconstitutional with immediate effect, therefore, the appellant shall have the victim fine surcharge removed from her sentence (R v Boudreault, 2018 SCC 58).