Sentence appeal granted. An Indigenous accused who pleaded guilty to two counts of uttering threats, at separate times and places, had his sentence reduced to seven months as it appropriately factors in his considerable Gladue factors. The probationary aspect is undisturbed so he can find appropriate supports and services to address his alcoholism, homelessness and illiteracy.

Indigenous Law Centre CaseWatch Blog

The Appellant, Mr. Blackduck, a Tłı̨chǫ man, pleaded guilty in Territorial Court to two counts of uttering threats, occurring at separate times and places. This matter is an appeal of his sentence. One incident involved the RCMP in Yellowknife when Mr. Blackduck was being arrested. Mr. Blackduck was subject to a probation order which, among other things, required him to remain a certain distance away from a Yellowknife liquor store. The RCMP officers were conducting a patrol when they saw him near the liquor store and warned him to move away. Mr. Blackduck, who was highly intoxicated at the time, was extremely aggressive and uttered violent threats even after he was subdued in the patrol car. The other incident happened at the Northern Store in Behchokǫ̀, where a store employee asked Mr. Blackduck to leave because he was banned from the location. He threatened to kill her and said he knew where she lived.

Mr. Blackduck has significant Gladue factors, and at the time of the sentencing hearing, he was homeless. When Mr. Blackduck is in Yellowknife, he stays at the men’s shelter and spends considerable time on the streets. When he is in Behchokǫ̀, which is where his family is, he stays either at the shelter or with his sister-in-law. Mr. Blackduck is unable to read and write in English, but has a strong connection to his Indigenous culture and was raised in a traditional background. However, substance abuse and violence were prevalent in his home growing up. Although Mr. Blackduck had made attempts to remedy his illiteracy, his housing instability posed great challenges, as he had no place to shower, wash his clothing or store his school books and supplies. There have been educational programs available to him while he has been in custody in the past, but he found it too embarrassing and did not want other prisoners to know he was illiterate.

With respect to the threat he made to the store clerk in Behchokǫ̀, Mr. Blackduck’s acknowledges that although he was banned from the store at the time, however on the day he made the threat, he needed money for food and the Northern Store was the only place where he could cash his government cheque. The alternative was to hitchhike to Yellowknife. When given his own opportunity to address the sentencing court, Mr. Blackduck expressed remorse for his conduct and spoke of his alcohol addiction.

Trial courts have wide discretion in the sentences they impose and that the standard of review on sentence appeals is a deferential one. An appellate court should only interfere with the sentence where: 1) the sentence is demonstrably unfit; 2) there is an error in principle; or 3) there is a failure to consider relevant sentencing factors (R v Shropshire, [1995] 4 SCR 227; R v Proulx, 2000 SCC 5, [2000] 1 SCR 61; and R v Lacasse, 2015 SCC 64 [“Lacasse”]). Where there is an error in principle, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor, appellate intervention will only be justified where it appears from the decision that the error had an effect on the sentence (Lacasse).

The Court is unable to conclude from the record that the sentencing judge adequately considered Mr. Blackduck’s Gladue factors in her sentencing analysis, as she did not ignore Mr. Blackduck’s Gladue factors entirely. The sentence imposed was within the acceptable range for uttering threats in the circumstances. Mr. Blackduck is addicted to alcohol. When he uses alcohol, he often engages in behaviours which lead to criminal charges and convictions. That is abundantly clear from his extensive criminal record.

However, Mr. Blackduck is unemployed, illiterate and homeless. He lacks resources to meet his basic needs and has nowhere near the support he needs to get a foothold to try and address his alcohol addiction. He does not even have the basic necessities in life because he has never really had a chance to attain them. He has faced systemic barriers and hardships his entire life, exacerbated by involvement in the criminal justice system. He is busy just surviving. This is a vicious cycle which diminishes his ability to make appropriate decisions about his conduct and to learn from the penal consequences of past conduct. It explains, to a large extent, his lengthy criminal record. All of this, in turn, diminishes his moral culpability that must be reflected in the sentence.

The Court determined a global sentence of 19 years for an Indigenous accused who was found guilty of 6 out of 7 counts of indictment that included home invasion, sexual assault of a 14 year old, and discharge of a firearm. He has credit for remand resulting in 15.65 years to be served in a federal penitentiary, to ensure the availability of appropriate programming.

Indigenous Law Centre – CaseWatch Blog

William David Angus, an Indigenous man from Thunderchild First Nation, was found guilty on six of the seven counts of the indictment, including entering the J. home with a rifle, sexually assaulting A.J., the 14-year-old, fleeing the scene, and shooting at the father, C.J., who was by then in pursuit (R v Angus, 2020 SKQB 32 [“Angus Conviction”]).

Following the conviction, an order was made for a pre-sentence report [“PSR”], with particular consideration of Gladue factors (R v Gladue, [1999] 1 SCR 688 [“Gladue”]; R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [“Ipeelee”]). Upon changes of counsel, and lengthy delays in receiving a  Gladue Report, a report on was filed and further information was outlined in a letter from the Report writer. In her submissions, it was emphasized the impact of intergenerational abuse and the tragic circumstances of Mr. Angus’ mother’s life. The supplemental PSR, provided background regarding the day school run by the Anglican Church on Onion Lake First Nation, which Mr. Angus attended as a young child. Mr. Angus also describes a lack of a sense of home or community and a pattern of transiency. Mr. Angus’ history and personal circumstances have been extremely difficult.

The significant harm a child experiences as a result of sexual violence and a high degree of moral blameworthiness attached to sexual violence against children are aggravating factors (R v Friesen, 2020 SCC 9). Adolescent girls, such as the complainant in this case, are at particular risk for victimization. Accordingly, sentences must not be disproportionately low. A.J.’s age and the significant impact on both her and her family are also deemed aggravating factors. Further, the presence of the firearm during the assault coupled with A.J.’s young age bring s. 272(2)(a.2) of the Criminal Code into effect. This makes Mr. Angus liable “to imprisonment for life and to a minimum punishment of imprisonment for a term of five years”. An additional aggravating factor in the context of the home invasion is mandated by s. 348.1 of the Criminal Code.

Mr. Angus would benefit from the programming available in the penitentiary, but the attitude he has exhibited is concerning. In contrast, Mr. Angus was just shy of 43 years of age when the crimes for which he is now being sentenced took place. He is now 45 years old. He also has a criminal record which includes, among other things, prior convictions under s. 348(1)(b) for break and enter and commission of an indictable offence therein. Mr. Angus’ focus over the months since his conviction has been on the pursuit of a Gladue Report, even to the point of being uncooperative with the PSR writer, as noted in Angus Gladue. Mr. Angus’ failure to acknowledge both his responsibility for his actions and his need for help in addressing the underlying issues is of concern. It would be beneficial and rehabilitative for him to avail himself of programming.