Category Archives: Case Watch

Jackie Vautour et al v HMQ in Right of the Province of New Brunswick and the Attorney General of Canada, 2020 NBQB 007

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Motion for recusal denied. The Plaintiff’s asserted their rights as Métis Acadian Mi’kmaq as justification for filing a claim for damages in the creation of the Kouchibouguac National Park. Their allegations of bias and apprehension of bias towards this claim by this Court were without merit.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Plaintiff’s filed a claim stating that between 1969 and 1971, the Province of New Brunswick expropriated the lands of residents in Northern New Brunswick and transferred these lands to Canada for the creation of the Kouchibouguac National Park. It stated that the Park was not Crown land, and the Plaintiffs held Métis rights and title regarding the Park and therefore, damages were sought on numerous grounds. The Plaintiffs claimed rights as Métis Acadian Mi’kmaq who come within the meaning of s 35 of the Constitution Act, 1982.

After the hearing, the Plaintiffs filed a motion seeking recusal on allegations of a reasonable apprehension of bias. It was alleged that the exchange with counsel caused them to be of the view that the Court was biased (Commanda v Algonquins of Pikwakanagan First Nation, 2018 FC 606).

Every Canadian has the constitutional right to have their issues decided by a fair and impartial judge, and allegations of bias and recusal motions strike at the core of judicial integrity (R v RDS, [1997] 3 SCR 484). The test to determine a reasonable apprehension of bias is to ask, “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude” (Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369). The objective for the Court is not just to ensure the process is fair; it is also to grant the appearance of a fair process (Yukon Francophone School Board Education Area No 23 v Yukon Territory (AG), 2015 SCC 25). The onus to establish reasonable bias is a “real likelihood or probability of bias” which is a high standard.

This Court determined that a reasonable, right-minded and informed person would view the comments at issue in this motion as encouraging the Plaintiff’s counsel to point to relevant evidence and to get to the point if there was a point to be made. The Plaintiffs’ perception of the comments demonstrates a view of the words used in isolation, detached from the hearing in which they occurred, with a special subjective sensitivity. This subjective sensitivity is inefficient to meet the objective test for a reasonable apprehension of bias.

The Plaintiff’s allegation does not give rise to bias or a reasonable apprehension of bias. To the contrary, the record is clear that the Court had an open mind to the Plaintiffs’ submission. After reviewing the judicial comments made during the hearing, it was determined that there was no reasonable apprehension of bias. Therefore, the Plaintiff’s allegations of bias and apprehension of bias were without merit, as the Court had an open mind to their submission.

R c Neeposh, 2020 QCCQ 1235

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After careful consideration of sentencing principles and Gladue factors, the mandatory minimum sentence of four years for discharging a firearm while being reckless as to the life or safety of another person, is declared unconstitutional and inoperative with respect to the accused.

Indigenous Law Centre – CaseWatch Blog

 The accused discharged a firearm while being reckless as to the life or safety of another person as he was walking in the streets of Mistissini, an Aboriginal community. The accused acknowledges the facts but challenges the constitutional validity of the mandatory minimum sentence of four years.

The accused had a difficult childhood, and was also at the time of the offences having personal difficulties with his ex-girlfriend. After a night of heavy drinking, the accused got a hold of a firearm and discharged several shots. The most serious charge is of having intentionally discharged a firearm while being reckless as to the life or safety of another person.

This Court took into consideration the proportionate sentence in comparison to the minimum mandatory punishment, along with other principles of sentencing, including Gladue factors of the accused. It declares that the minimum mandatory punishment of imprisonment for a term of four years provided under section 244.2(3)(b) of the Criminal Code is unconstitutional and inoperative with respect to the accused.

The accused is to serve a sentence of imprisonment for a term of 571 days of imprisonment with a probation order for two years beginning upon release of the accused from custody, under further ancillary conditions including writing a letter of apology to the victims.

 

R v Hartling, 2020 ONCA 243

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Conviction appeal dismissed. Sentence appeal allowed in part along with a stay of a second breach of probation charge. The Crown tried to rely on the delays involved in obtaining a Gladue report to justify the post-verdict delay.

Indigenous Law Centre – CaseWatch Blog

Following an afternoon of heavy drinking with her adult son and boyfriend, the complainant was seriously assaulted. She told first responders that her son was responsible. The son was charged. The mother testified for the Crown that her son attacked her and her boyfriend following an argument. Months later the trial resumed. This time the mother testified for the defence. She changed her testimony and said that it was her boyfriend, not her son, who attacked her.

The trial judge convicted her son for aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody. After considerable delays, the trial judge found the appellant guilty of aggravated assault against his mother, her boyfriend along with resisting arrest and two counts of breach of probation. Following 8.2 months of pretrial custody, he was sentenced to 21.8 months of incarceration.

The son appealed his convictions and sentence. However, the post-verdict delay was determined unacceptable to this Court. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report. Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately. The issue of post-verdict delay was addressed by this Court in R V Charley, 2019 ONCA 726 [“Charley”], where a presumptive ceiling of five months was set for the time from verdict to sentence.

In an attempt to justify the delay, the Crown alleged extraordinary circumstances because of the issues with the Gladue report and because the case was already in the system when Charley was decided. The Court does not accept that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable.

The appellant was entitled to a Gladue report, the trial judge ordered it, and subsequently relied on it. According to R v Jordan, 2016 SCC 27, the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to qualifications but these qualifications do not apply in this matter. A 14-month delay was unreasonable and breached the appellant’s s 11(b) Charter rights.

A stay of a valid conviction would impact public confidence in the administration of justice. The possibility of vacating a valid conviction based on sentencing delay is “an unjustified windfall” for the accused (Betterman v Montana, 578 US, 136 S. Ct. 1609). The appropriate and just remedy here should target the sentence, not the conviction. The appellant was convicted of a violent offence against his mother in her home. It would bring the administration of justice into disrepute to stay the conviction. For the remedy to target the sentence, it must be based on and align with sentencing principles. The sentence is reduced by five months.

British Columbia (Child, Family and Community Service) v MJK, 2020 BCPC 39

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Application dismissed. It is in the best interests of the child to remain in the custody of her foster parents than with her biological father, as she is connected to the biological mother’s First Nations cultures and is fluent in their language.

Indigenous Law Centre CaseWatch Blog

The Director of Child, Family & Community Service [“Director”] has a continuing custody order made by this Court for a 6 year old child. The biological father, applies to set aside that order. However, there is no application before the Court to appoint him or anyone else to be the child’s guardian, and it is not clear who would be.

A biological parent is a guardian if and only if the biological parent “regularly cared for the child” (Family Law Act). The father has never had day-to-day care of the child, and so is not her guardian. The father’s application was opposed by the biological mother. Sadly, however, she recently died of a drug overdose and was unable to participate in the hearing. As well, the Director opposes the application. Three First Nations participated in the hearing, the Homalco and Klahoose First Nations, of which the mother was a member, and the Wuikinuxv First Nation, of which the father is a member.

The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody and protection. None of the Wuikinuxv, Klahoose and Homalco First Nations have exercised that right. On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: 1) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and 2) if so, whether cancellation of the continuing custody order is in the child’s best interest (Director of Child, Family & Community Service v AI, 2005 BCPC 620).

The father has clearly made significant progress with his substance abuse and anger- management issues, however, there is always a risk of relapse with every recovering addict and there is a history of violent behaviours. The Court is not in a position to quantify the risk of future family violence initiated by the father, but it is considered to be a real risk, which should not be ignored. Each of the governing statutes emphasizes the importance of fostering the child’s connection to, and participation in, the cultures of the First Nations of which she is a member.

The child has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully-integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation. She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day-to-day life. The statutes do not allow the Court to prefer father’s interests at the expense of the child’s. The Court is of the opinion that the child’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason.

R v Evic, 2020 NUCJ 7

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After weighing the sentencing principles with Gladue factors, the circumstances of the Indigenous offender after entering a guilty plea for aggravated assault resulted in an incarceration of 3 years, minus credit for pre-sentence custody. 

Indigenous Law Centre – CaseWatch Blog

The offender was convicted of aggravated assault pursuant to s 268(2) of the Criminal Code. The details of the offence are that the victim was at his friend’s home having drinks when the offender and his co-accused came over. An argument ensued with the victim before being physically attacked. The victim was punched and kicked until he was rendered unconscious. He did not fight back, and suffered bruising on the left arm and three serious lacerations to his scalp which required 16 staples to his head.

The offender is a 44-year-old Indigenous man who hunts and fishes for his family and donates some of his catch to elders. The offender is a carver for a living. He did not attend Residential School, and he was unsure if his biological mother did either. While the offender lives in a dry community, he reported extensive use of both drugs and alcohol. He has two children who live with their mother, and he provides financial support to them when he has the income. He has lost multiple family members to suicide. The offender has a record which includes offenses of possession of a weapon, assaults, theft, mischief, uttering threats, and failure to comply with an undertaking.

Following the sentencing principles of s 718 of the Criminal Code, the Court was required to ensure that the sentence was proportionate to the gravity of the offense and the degree of responsibility of the offender. The section also outlines other sentencing principles for the sentencing judge to consider in determining aggravating or mitigating circumstances which are supplemented by the analysis required by Gladue. The aggravating factors including the severity of the injuries to the victim, the fact that the attack was unprovoked, the offender’s serious criminal record for similar offenses, and his prior jail sentence. The mitigating factors included that the offender expressed remorse, his co-accused initiated the assault, he expressed a desire to change his ways and return to work, he has a support network and a close connection to the community. After considering these factors, the Court imposed a sentence of incarceration of 3 years minus credit for pre-sentence custody.

RR v Vancouver Aboriginal Child and Family Services Society (No 4), 2020 BCHRT 22

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West Coast LEAF’s application to intervene granted in part in a complaint of alleged discrimination, as it can contribute a unique and helpful perspective regarding the social context of Indigenous people in child welfare.

Indigenous Law Centre CaseWatch Blog

RR filed a complaint of discrimination against Vancouver Aboriginal Child and Family Services Society [“Society”] alleging that its decision to deny her custody and restrict access to her children amounts to discrimination on the basis of her race, ancestry, color, and mental disability. West Coast LEAF applied to intervene in the complaint under s 22.1 of the Human Rights Code [“Code”] stating it could assist the Tribunal to situate the complaint in its broader social context as well as interpreting both the Code and the Child, Family and Community Services Act in a manner consistent with the Charter and international law. RR supported the intervention, the Society opposed it.

Neither party raised issues related to Charter values, and in the view of the Tribunal, none arose in the complaint. Rather, this case involved an application of s 8 of the Code to the facts of this case, within a framework well known to human rights law and therefore the application to make submissions about Charter values was denied. Second, this complaint did not require the Tribunal to interpret s 8 or apply it in a novel circumstance and therefore that application was denied as well.

A different conclusion was reached for the remaining three proposed submissions. Based on the Tribunal specifically identifying the need to have full regard to the social context of Indigenous people in child welfare, the first two submissions concerned the social context underlying the complaint. West Coast LEAF had a unique and helpful perspective to bring to the Tribunal established through their demonstrable expertise in equality.

The application of West Coast LEAF to intervene was granted as follows: it had leave to make oral submissions during the opening, not to exceed 10 minutes; it had leave to file written submissions at the close of the hearing; the scope of the submissions was limited to the issues identified above; and it did not have standing to take part in any procedural matters before the Tribunal without leave.

R v Lemieux, 2020 ONCJ 54

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The Court did not believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage. He is sentenced to 26 months for the possession of child pornography contrary to s 163(4) of the Criminal Code.

Indigenous Law Centre
Indigenous CaseWatch Blog

Just over a year prior, the offender entered a guilty plea to a single count that he did, without lawful excuse, possess child pornography in the form of videos and images contrary to section 163(4) of the Criminal Code. The Crown elected to proceed by way of indictment. Leading up to sentencing, there was preparation of a pre-sentence report, a Sexual Behaviours Assessment and a Gladue report.

The Ottawa Police Service initiated an investigation into the possession and sharing of suspected child pornography by following the information of an IP address that identified and led them to locate the offender’s home address. A search warrant was executed on the residence and the offender was placed under arrest. A desktop computer was seized as well as an external hard drive. There were 6617 images of child pornography and 611 videos of child pornography.

Although Gladue factors could be relevant to a sentencing for possession of child pornography, the offender brought this claim forward especially late in the proceedings after he was expressly provided opportunity to claim First Nations heritage. He was adopted at six months into a Franco-Ontarian family and therefore the source of ethnicity would be his birth parents. He could only recall his mother’s first name. The Court did not ultimately believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage.

Overall, in the circumstances in this case, the record did not reflect a situation where credit should be given due to the restrictive nature of the bail conditions. Further, the court was not convinced on a balance of probabilities that the offender had been making serious and consistent efforts towards rehabilitation and thus not able to receive any credit.

An important case in Ontario involving sentencing for the possession of child pornography is R v Inksetter, 2018 ONCA 474 [“Inksetter“], and in the present matter the offender’s collection was nowhere near as large and while vile, did not seem to have been of the same level of depravity as that in Inksetter. He was cooperative with police while arrested, he plead guilty, complied with the conditions of his bail and had been a model resident at the John Howard Bail Bed Program. However, there was no clear indication the offender was truly remorseful. His cavalier attitude towards treatment lead the court to believe he had no true insight into his pedophilia. The age of children, size of collection and nature of acts depicted were aggravating. The most aggravating was his prior criminal record which consisted entirely of sexual assaults against children. This single factor alone would make a reformatory sentence inappropriate. Based on the foregoing, a sentence of twenty-six months was appropriate with the ancillary orders put forward by the Crown granted.

Kennedy v Carry the Kettle First Nation, 2020 SKCA 32

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Appeal allowed of a judicial review that quashed a customary decision to remove opposing members on a First Nation’s election code tribunal. The Federal Court of Canada had exclusive original jurisdiction pursuant to s 18 of the Federal Courts Act to hear and determine that application. 

Indigenous Law Centre – CaseWatch BlogThe Appellants are members of the Cega-Kin Nakoda Oyate Tribunal [“Tribunal”], an election tribunal established by the Cega-Kin Nakoda Oyate Custom Election Act [“Code”]. They, like the Respondents, [“opposing members”], were appointed as Tribunal members by the Chief and Council of the respondent, Carry the Kettle First Nation [“CKFN”]. The Code provides that the Tribunal shall have five members.

In 2019, the Appellants purported to make orders of the Tribunal [“Orders”] at certain meetings. The only attendees at those meetings were the Appellants, as the opposing members refused to attend, and never approved the Orders. Subsequently a resolution was passed at a joint meeting of the Appellants and a group of Elders [“Elders’ resolution”]. The Elders’ resolution established rules for the removal of Tribunal members and removed the opposing members from the Tribunal. The CKFN applied to the Court of Queen’s Bench for judicial review, challenging the validity of the Orders and the Elders’ resolution [“Application”]. The Chambers judge who heard that judicial review quashed the Orders and the Elder’s resolution. In this matter the Appellants appeal that decision to this Court. It has been determined that this appeal must be allowed, as the Federal Court of Canada had exclusive jurisdiction to hear the judicial review application.

After s 74 of the Indian Act order was rescinded in 2018 for the CKFN, their Code came into effect. The definition of “council of the band” in s 2(1) of the Indian Act provides that when a band is not subject to a s 74 order, and is not named or formerly named in the schedule to the First Nations Elections Act, “council of the band” means “the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band”.

None of the parties takes issue with the proposition that the Code constitutes “custom of the band” within the meaning of s 2, although they differ as to what constitutes custom. It is clear that a recently adopted election code may be custom for this purpose, despite that the authority to enact such a custom election code is not granted by the Indian Act or other federal legislation (Pastion v Dene Tha’ First Nation, [2019] 1 CNLR 343 [“Pastion”]). The custom of the band is not limited, and indeed may bear little resemblance, to historic customs, practices or traditions that existed prior to the Crown’s assertion of sovereignty. What the Indian Act describes as ‘custom’ is often the written product of public deliberation within a First Nation and it may rely on the mechanisms of Western democracy, or provide for a mechanism that blends Western democracy and Indigenous tradition (Pastion). The Code is such a document regardless of whether, as Pastion suggests, it might be more apt to describe it as “Indigenous legislation” or “Indigenous law”. The Code is effective for purposes of the Indian Act regardless of whether that is so.

The Code does not contain provisions which deal expressly with the issues of removal or replacement of Tribunal members. The Appellants resolved to hold a joint meeting with the Nation Elders to deal with those issues. That meeting [“Elders’ Meeting”], attended by the Appellants, and 26 Elders, unanimously supported the Elders’ resolution, which established criteria and a process for removing and replacing Tribunal members. This Elders’ resolution also provided that the three opposing members were “removed as Tribunal members effective immediately”.

In this matter, the Appellants submitted that both the Tribunal and the Elders’ Meeting were federal boards, commissions or tribunals [“Federal entity”] within the meaning of s 18 of the Federal Courts Act [“FCA”]. The Chambers judge did not deal with the question of whether the Tribunal and the Elders’ Meeting were Federal entities. On an appeal from a judicial review, the task of an appeal court is normally to determine whether the Chambers judge selected the correct standard of review and correctly applied that standard (Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70; Dr Q v College of Physicians & Surgeons of British Columbia, 2003 SCC 19). It is concluded that this appeal should be disposed of on the basis of the jurisdictional question, which raises two issues: 1) did the learned Chambers judge err by deciding that the Court of Queen’s Bench had jurisdiction to hear the Application pursuant to s 22 of the Code; and 2) did the Chambers judge err by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA?

In this case, the conditions necessary to engage the right to apply pursuant to s 22 have not been met because the Application was filed by the CKFN. That, in itself, is enough to determine the issue. The Tribunal has not yet made a final decision as to the results of the election, therefore the CKFN could not bring the Application in the Court of Queen’s Bench pursuant to s 22 of the Code, and the Chambers judge did not have jurisdiction to hear the Application pursuant to that section.

The same reasoning applies to the Elders’ Meeting. The question is not whether those recognized as Elders by the Nation are a Federal entity whenever they play a role in the CKFN’s affairs. The question is whether the Elders’ Meeting had the authority to pass the Elders’ resolution. If the Elders’ Meeting had the authority it exercised or purported to exercise, it was because that authority was the custom of the band, and like the authority of the Tribunal, was made effective in this context. The Tribunal and the Elders’ Meeting were both Federal entities within the meaning of s 18 of the FCA. The Chambers judge erred by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA.

Crate et al v Government of Manitoba, 2020 MBQB 9

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Manitoba satisfied its duty to consult and accommodate a First Nation prior to granting a licence to a company to expand an existing peat harvesting and procession operation that would affect traditional activities of hunting, fishing and harvesting plants in the area.

Indigenous Law Centre
Indigenous CaseWatch Blog

Sunterra Horticulture Inc [“Sunterra”] submitted a notice of alteration in relation to its existing license to allow expansion of its existing peat harvesting and processing operation on the Washow Bay Peninsula which is land within the traditional territory of the Fisher River Cree Nation [“FRCN”]. The Government of Manitoba invited FRCN to participate in consultations but ultimately granted the revised license to Sunterra.

FRCN appealed the issuance of the license but the appeal was dismissed. By way of an application for declaratory relief, the applicant’s sought a review of the Minister’s decision focused on two substantive issues: 1) the Sunterra license should not have been granted because Manitoba failed to satisfy its duty to consult with FRCN before issuance; and 2) the Minister’s decision to dismiss FRCN’s appeal was based on a failure of Manitoba to hold a public hearing and comply with section 11(10) of The Environment Act.

Whether Manitoba correctly assessed the extent of their duty to consult was reviewed on a standard of correctness. It was not disputed that peat harvesting could interfere with or disrupt the traditional activities of hunting, fishing and harvesting plants in the area. Manitoba correctly identified the level of consultation required as being at the medium to high level. It was significant that Manitoba had an established written policy regarding the level of consultation. Prior to consultation, Manitoba and FRCN agreed to and signed a Protocol respecting Crown-Aboriginal Consultations and a Consultation Funding Agreement with respect to the Sunterra project. These were examples consistent with those suggested in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72.

Whether Manitoba adequately discharged its duty to consult was reviewed on a standard of reasonableness. Based on the consultation record, Manitoba received and responded to FRCN’s concerns in relation to the exercise of its Aboriginal and treaty rights. Manitoba provided information to FCRN when it was requested. There was ongoing correspondence and dialogue. The conditions as set out by the record constituted adequate accommodations of FRCN’s concerns. While the FRCN may have received a response they did not want, it could not be said that Manitoba did not consider FCRN’s position and responded to it. Therefore, Manitoba satisfied its duty to consult and accommodate FRCN prior to granting the Sunterra licence.

As for the public hearing, it was not unreasonable for the Minister to conclude that the concerns raised by FRCN regarding the Sunterra project were addressed by the conditions imposed on the licence. There was no evidence that FCRN was prejudiced by the Director’s failure to comply with the twenty-one-day deadline. There was no evidence of bad faith, or a failure to recognize responsibilities of a disregard for public concerns, or of a dismissal of legitimate objections to the project. Although the failure to comply with the statutory timeline cannot be condoned, it was not basis for the court to invalidate the issuance of the Sunterra licence or the Minister’s conclusion that a public hearing was unnecessary.

R v Komak, 2020 NUCJ 12

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Weighing the sentencing principles of deterrence and denunciation with Gladue and other mitigating factors, the Indigenous accused is sentenced to 3 and a half years minus pretrial custody with 3 years of probation, for the manslaughter death of a friend at a party.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused hosted a cribbage game at his home in Cambridge Bay. Some of those present, including the accused, smoked cannabis throughout the evening but none were drinking alcohol. The victim sent a text message to the accused that he was drunk and wanted to go to the accused’s house to drink with him. After coming over, the victim drank and tried throughout the evening to convince the accused to drink with him, who eventually succumbed.

At one point the victim became aggressive with the accused and throughout the night, arguing was witnessed. In the early hours of the morning, the victim was discovered dead from a stab wound, and the accused passed out with no recollection of the offense.

By his guilty plea, the accused admitted responsibility for the stab wound that killed his friend, and that he acted in the heat of passion caused by the accused’s sudden, provocative, intoxicated and aggressive behaviour. He admitted to using excessive force and in those circumstances he is guilty of manslaughter and expressed remorse.

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Consideration was also given of potential Gladue factors of the unique systemic or background factors on the accused to help shed light on his level of moral blameworthiness. The accused is 45 years old, a husband and a father of three. He suffered through a very difficult childhood, as his parents were alcoholics who often chose excessive drinking over the welfare and safety of their son. There were times when he had to actually sleep outside in the cold. His criminal record of committing property offences were in context with a lack of supervision and the inability to count on three meals a day and a warm bed to sleep in.

Although rehabilitation is always important, this is a case where the primary goal of sentencing is deterrence and denunciation. The accused is sentenced to three and a half years in jail minus pretrial custody to be followed by three years of probation, along with a number of mandatory orders imposed.