The Court accepted a joint submission on sentence of two years and 77 days for a Cree Métis man’s aggravated assault against an intimate partner who was also Indigenous. The Court would have imposed a longer sentence in the absence of the joint submission, but the strict test for departure from a joint submission on sentence was not met. 

Indigenous Law Centre CaseWatch Blog

Johnathan Troy Racette, a Cree Métis of the Cowessess First Nation in Saskatchewan, has consented to remain in custody, ultimately entering a guilty plea that at or near Masset, in the Province of British Columbia, did commit aggravated assault of Kyla Fraser, an Indigenous woman, contrary to Section 268(2) of the Criminal Code.

This is a joint submission on sentence. The Court must apply the “public interest test” in deciding whether to agree to the joint submission or depart from it. It may only depart from the joint submission if the proposed sentence would bring the administration of justice into disrepute or if the proposed sentence is otherwise contrary to the public interest (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”].

Mr. Racette and Ms. Fraser were in an intimate partner relationship described as “on-again/off-again” from approximately 2018 until the offence in 2020. The relationship had episodes of drug abuse and violence. Despite court-ordered conditions on remand which prohibited Mr. Racette from contacting Ms. Fraser directly or indirectly, she claims he routinely contacted her. Mr. Racette acknowledged communicating or attempting to communicate with Ms. Fraser during the early period of his incarceration in this matter. He is unclear of the frequency of such alleged contact and was unaware of some of the other individual messages given to Ms. Fraser.

Although there are Gladue factors to consider in regards to Mr. Racette, including a diagnosis of various mental disorders, experience of sexual abuse that he suffered quite young in an upbringing rife with poverty and substance abuse, but there is additional consideration as per s 718.201 of the Criminal Code. It states that a court in imposing a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

Mr. Racette has been working on his Grade 12 equivalency, but has not yet completed it. His employment history consists of mainly general labour jobs and drug trafficking at various times in his life. He currently has no source of income and is reliant upon income assistance and money that his mother provides to him. In discussing his anger, Mr. Racette describes that “he is ‘short-fused.’” According to an RCMP constable, a comprehensive threat assessment was completed by the Behavioural Sciences Group in relation to Mr. Racette which assessed him to be high risk to commit an act of violence against Kyla Fraser or any future intimate partner; and any person he associates with.

But for the joint submission, the Court would have incarcerated Mr. Racette for a significantly longer period of time than two years and 77 days. However, as per Anthony-Cook, the Court must agree to the joint submission, as it does not meet the “public interest” test.