R v Wood, 2021 MBQB 4

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An imposed sentence for 18 years’ incarceration is considered fit for an Indigenous offender convicted of manslaughter for killing his wife. His moral blameworthiness, even when tempered for his Gladue circumstances, is very high. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Indigenous women. While restorative sentences are important in many situations of an Indigenous victim and abuser, that is far less so in cases of murder or manslaughter.

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In 2018, Jonathon Wood was convicted of manslaughter for killing his wife, Kathleen Wood, in their home community of St. Theresa Point First Nation, Manitoba. Both Mr. Wood and his wife are Indigenous persons who were raised, and lived in the isolated First Nation with a population of about 4,000 people, accessible only by air, boat or winter ice-road. They began their relationship in 2004 and were married in 2010. Mr. Wood intermittently assaulted Mrs. Wood since 2012. He was convicted of assaulting her four times. By this point, they had three children together, along with an older boy from Mrs. Wood’s prior relationship. These assaults followed a consistent pattern.

When Mr, Wood attacked Mrs. Wood in 2013, 2014 and 2015, he was on some form of bail or probation aimed at reducing the chance he would assault her again. When he ultimately assaulted and killed her, he was still bound by two Probation Orders which stipulated he was not to have contact with Mrs. Wood and imposed restrictions on him when drinking. Regardless of these Orders, Mr. Wood was charged again for assault and aggravated assault of several people, including Mrs. Wood, as well as four probation breaches. He was released on a Recognizance which included not to communicate with Mrs. Wood, and in part, allowed him to be arrested even if he was just in the area of St. Theresa Point.

Despite the court orders, and his promise to abide by them, Mr. Wood went to St. Theresa Point to see his family and Mrs. Wood. A party took place at Mr. Wood’s brother’s residence, and all were intoxicated. As the evening progressed, Mr. and Mrs. Wood got into an argument, which eventually led to Mr. Wood assaulting Mrs. Wood with his fists and feet, repeating the escalating pattern of the four prior convictions. The brother wanted to check on Mrs. Wood, who was then lying on the floor, but Mr. Wood told him to leave her alone, that she was just passed-out. Concerned, the brother went next door for help but returned moments later to Mrs. Wood no longer breathing.

Mrs. Wood’s injuries were awful. The autopsy revealed the true devastation. The forensic pathologist detailed many injuries including numerous bones broken, including her jaw, left clavicle, left wrist and all 24 ribs, 23 of which had multiple fractures. She also suffered a subarachnoid hemorrhage, full-thickness tongue laceration, contusions and lacerations of the lungs and diaphragm, and contusion of the liver. There was no evidence Mrs. Wood’s injuries were caused by anything other than Mr. Wood beating her at the party.

A pre-sentence and Gladue report was prepared for sentencing. Mr. Wood left school with very little education, and no employable skills. There is nothing to suggest Mr. Wood experienced any mental health concerns. Poverty, unemployment, lack of education and substance abuse were negative influences in Mr. Wood’s upbringing. During the course of his times in custody, Mr. Wood participated in many programs, including anger management, parenting skills and healthy relationships.

The vulnerability of a victim, particularly a woman in a domestic context, are well established aggravating factors on sentencing and ones which emphasize denunciation and deterrence (R v LP, 2020 QCCA 1239). Generally, spousal killings attract a higher sentence, and greater condemnation, than other types of manslaughter (s 718.2(a)(ii) of the Criminal Code). Mrs. Wood’s Indigenous status, and living in a community so under-serviced and isolated as St. Theresa Point First Nation, heightened her vulnerability to spousal violence (R v AD, 2019 ABCA 396). It is clear that this event was not only catastrophic for Mrs. Wood but also for her four teenage children.

The nature of the beating was merciless. His previous pattern of beating Mrs. Wood and resulting convictions, his sober defiance of court orders, and his willful disregard for placing her, his wife, in situations of grave danger, adds considerably to his blameworthiness. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Indigenous women. There is the need to separate Mr. Wood from his community so he is no longer a threat to them.

R v Nahanee, 2021 BCCA 13

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Appeal dismissed. The Appellant’s guilty plea was not accompanied by a joint submission on sentencing, thereby the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than what was sought by the Crown. The sentence was not demonstrably unfit, as the Appellant’s Indigenous heritage was taken into account when assessing aggravating factors.

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The Appellant, Mr. Nahanee, who grew up in the Squamish Nation Capilano Reserve in West Vancouver, pleaded guilty to two counts of sexual assault and was sentenced to eight years’ imprisonment. The first count was against SR on one occasion, the second was against EN on many occasions. The sentencing judge ordered a pre-sentence report, a psychiatric assessment, and a Gladue report.

The offences against EN were committed over a long period. EN lived in the care of her grandparents, together with the Appellant, her uncle, between 2010 and 2015. When she first moved into their home, she was 13 years old, and the Appellant was 19 years old. The Appellant repeatedly assaulted her at night, and when she was 14 years old, the assaults escalated with so much frequency she lost track of the number. EN came forward to the police in 2018, after learning that Mr. Nahanee had also assaulted her younger cousin, SR. SR had told her grandmother about past assaults by her uncle, but was not believed by her family.

Gladue factors were considered at length by the trial judge, but did not weigh significantly in sentencing. The Appellant had not endured violence or abuse, and was raised in a safe home. She described the Appellant’s family’s history, and his forebears’ experience in residential schools and their loss of cultural and spiritual connections. She placed significant weight upon the fact the victim and the community in question here were Indigenous, and the victims, as a result, were much more vulnerable to sexual assault than their non-Indigenous counterparts (R v Barton, 2019 SCC 33; R v SPS, 2019 BCPC 158).

The admission made by the Appellant, amounted to an admission that there had been prior, uncharged assaults, the victim had reported them to her grandmother, and she had been disbelieved. Given that the admission was made to assist the court in sentencing following a guilty plea, no other purpose could be served by the admission. It was certainly not an admission that the victim had previously made false reports to her grandmother.

The sentencing judge acknowledged the obligation to consider the Gladue principles in this case, as in every case involving an Indigenous offender. Having done so, it was not an error to consider the extent to which the offender himself was affected by cultural oppression, social inequality and systemic discrimination. Appropriate care was taken in this case to identify Gladue factors and to determine whether they attenuated the Appellant’s moral blameworthiness. It should be borne in mind that the application of the Gladue principles in this case must also have been tempered by consideration of the fact the victims were Indigenous children. The effort at reconciliation that, in part, motivates the Gladue approach to sentencing, is not served by sentences that do not sufficiently deter violence against Indigenous children.

Paul v Correctional Services of Canada, 2020 NSSC 380

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The Applicant, a Maliseet woman, has been partially successful. The Respondent prison authorities shall pay costs in the amount of $500.00 to the incarcerated Applicant. She will receive a declaration that the deprivation of her residual liberties that she experienced for a further 10 days in maximum security after it was determined she could return to medium security, was unlawful.

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The Applicant, Ms. Paul, brings this application for habeas corpus. She is serving a sentence for offences that include robbery, four counts of failure to comply with a Probation Order, and other counts. Ms. Paul is a 35-year-old first-time federal offender and is presently incarcerated at Nova Institute for Women [“Nova”]. She is Maliseet, and from St. Mary’s First Nation in New Brunswick [“SMFN”]. Her undisputed contentions are that she lives with long-standing addictions, and has reported diagnoses of bipolar disorder, attention deficit disorder, depression and anxiety. She also reports a history of sexual trauma and family fragmentation.

Nova is a women’s multilevel facility. In 2019, Ms. Paul was released and granted day parole from Nova which was subsequently suspended due to a urinalysis test performed in her community, which had returned positive for opiates. Prior to Ms. Paul’s return, Nova had received information from Ms. Paul’s community parole officer to the effect that it was believed that she would attempt to introduce drugs into the institution. Ms. Paul was subjected to testing by a drug sniffer dog, as well as an ion scanner upon arrival at Nova. This testing was positive for drugs, and as a result, the facility placed her in the Structured Intervention Unit [“SIU”], where she remained for six days. Ms. Paul no longer challenges her initial 6-day placement in the SIU. What she does challenge is the subsequent decision to detain her in the Secure Unit [“SU”], or maximum security, when the records at the institution always had her either classified or as a “recommended” medium security risk. Despite this, she remained in SU until the Warden’s Board accepted the recommendation and then was she moved into general population.

The Court concludes that Ms. Paul’s matter, although moot, merits a decision in the circumstances of this case (Borowski v Canada (AG), [1989] 1 SCR 342). Ms. Paul sustained a deprivation of liberty for the period of time during which she was in SU as opposed to a medium security setting. She was deprived of some of the liberties to which the general population inmates were entitled. Her security classification never changed from “medium”. This means that her treatment is subject to review by this Court on the basis of lawfulness and reasonableness.

Once a deprivation of liberty has been established by the Applicant, along with a legitimate ground upon which to question its legality, she bears no further burden. The onus shifts to the Respondent prison authorities to demonstrate on the balance of probabilities that it acted both lawfully and reasonably on both substantive and procedural grounds. It was reasonable on the part of the decision-makers at Nova to the placement of Ms. Paul in the SIU at first instance due to the above concerns. The Court concluded this placement was in conformity with the Corrections and Conditional Release Act, and therefore substantively reasonable.

However, there is no reference explaining why it took the institution ten days longer to convene the Wardens Board hearing. This length of time requires explanation and justification, which is part of the onus which the Respondent must discharge. This is particularly troubling given the fact that the impact of the SU placement on Ms. Paul was always known by the Respondents to have critical consequences to her well-being and must not be understated. The Respondent’s onus is not discharged merely by explaining and justifying the reason(s) as to why Ms. Paul was initially allowed less liberty than her medium security counterparts. It must also explain the length of time during which she was so deprived (Dumas v Leclerc Institute, [1986] 2 SCR 459).

In these circumstances, an explanation of why it took a further 10 days to confirm that Ms. Paul would be released into the medium security, general population, commensurate with her recommended and subsequently endorsed security rating is required and was not provided. The Applicant will have a declaration of such and the Respondents, as well, shall pay costs in the amount of $500.00, including disbursements.

R v Blackplume, 2021 ABCA 2

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Appeal allowed and an indeterminate sentence is imposed. The sentencing judge erred in law. It was not open to her to exempt an Indigenous transgendered offender from the operation of the dangerous offender provisions of the Criminal Code.

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In this matter, the Crown appeals the determinate sentence imposed on the respondent, a transgendered person from the Blood Tribe, born Josiah Jerome Blackplume and now known as Lucy Blackplume. Ms. Blackplume was 29 years of age at the time of sentencing and most likely suffers from Fetal Alcohol Spectrum Disorder. She cannot understand the impact of her decisions, exercise self-control, or filter impulses. This cognitive deficit will be lifelong, and she requires a high level of in-the-moment support. She displays features of antisocial personality disorder, borderline personality disorder, narcissistic personality disorder, and psychopathy. Ms. Blackplume’s childhood was traumatic and dysfunctional and she virtually has no work experience.

At the dangerous offender hearing, Ms. Blackplume pleaded guilty to sexual assault with a weapon and assault causing bodily harm. Other convictions include attempted sexual assault with a weapon, sexual assault, fraud over $5,000, and assault causing bodily harm. As a result of her convictions, Ms Blackplume has spent almost 12 years in institutions with notable periods in segregation, isolation or observation because of anxiety, depressed mood or suicidal ideation, gestures, threats or attempts, and because she has been assaultive or sexually inappropriate with other inmates, or found trafficking her own stockpiled medications.

Ms Blackplume met the criteria for a dangerous offender and for an indeterminate sentence. The sentencing judge acknowledged that an indeterminate sentence would have been imposed, but for her finding that in Ms Blackplume’s circumstances such a sentence would constitute cruel and unusual punishment in violation of her s 12 Charter right (R v Boutilier, 2017 SCC 64 [“Boutilier”]). The sentencing judge also reviewed Gladue factors. In her view, correctional institutions have failed to develop humane secure housing and treatment for Indigenous and mentally ill offenders (R v CPS, 2006 SKCA 78). The sentencing judge endorsed the perspective that offenders such as Ms Blackplume are more appropriately treated from a mental health rather than correctional perspective (Ewert v Canada, 2018 SCC 30). Based on these factors, the sentencing judge concluded that an indeterminate sentence would amount to a life sentence for Ms Blackplume.

Under sections 753(4) and (4.1), a court sentencing a dangerous offender shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender or a serious personal injury offence. Despite the finding that Ms. Blackplume is a dangerous offender, the sentencing judge imposed a determinate sentence of 10 years for sexual assault with a weapon and six years for assault causing bodily harm to be served concurrently, followed by a 10-year long term supervision order. She did so as a remedy for breach of Ms Blackplume’s right to be free from cruel and unusual punishment as guaranteed by section 12 of the Charter (R v Blackplume, 2019 ABPC 273 [“Blackplume“]).

In Boutilier, the Supreme Court of Canada held that the prospect of indeterminate detention, as provided for by section 753(4.1), does not lead to a grossly disproportionate sentence contrary to section 12 of the Charter. It is part of a broad scheme for imposing a fit sentence. The subsection applies to a narrow group of offenders who are dangerous per se. For those who cannot be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence, a sentence of indeterminate detention is to be imposed. The effect of the sentencing judge’s decision was to grant Ms Blackplume a constitutional exemption from the operation of section 753(4.1).

The facts of this case do not present meaningfully “different circumstances” or “different reasonable applications” than those considered in Boutilier and preceding cases. Beyond Ms Blackplume’s circumstances, the sentencing judge explained that she reduced the sentence as an incentive to the Correctional Service of Canada to develop “humane housing and treatment” and “humane secure facilities” (Blackplume). This rationale does not relate to proportionality or any other sentencing objective and was therefore an irrelevant factor. The sentencing judge erred in relying on it.

An appellate court may sentence afresh where an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor had an impact on the sentence (R v Lacasse, 2015 SCC 64). The sentencing judge erred in law in finding a Charter breach and in using that finding to reduce the sentence and in relying on an irrelevant objective. This Court therefore must sentence afresh. Ms Blackplume’s characteristics do not outweigh the statutory interest in public protection. An offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are considerations relevant to deciding whether or not a lesser sentence would sufficiently protect the public. Therefore an indeterminate sentence must be imposed.

R v Kandhai, 2020 ONSC 3580

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The Court sentenced a Black offender to 49 total months for possession of a prohibited firearm with accessible ammunition and for breach of a firearms prohibition order. The Court took into account a detailed history report which considered his life circumstances including growing up in poverty and experiencing anti-Black racism from a young age. The Supreme Court of Canada’s invaluable guidance in this area, albeit in the context of Aboriginal offenders, informed the sentence.

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Mr. Jeremy Kandhai has a long criminal record for a 25-year-old man. The first circumstance identified in a pre-sentence report was that Mr. Kandhai grew up in low income, subsidized housing. The second circumstance was that anti-Black harassment and constant police presence continued throughout his childhood. The report further suggested that he was engaging, self-aware and took accountability for his actions. The principle argument for a reduction of the sentence normally imposed for these crimes is premised on Mr. Kandhai having a lower degree of responsibility as a result of the poverty, discrimination and anti-Black racism he has endured over his lifetime.

The Court relied on systemic factors and rehabilitation as key importance. The sum total of influences upon an individual, including poverty and racial bias, has helped form the person who committed the crime (R v Gabriel, 2017 NSSC 90). Aboriginal offenders are specifically mentioned in Section 718.2(e) of the Criminal Code, the provision commanding that incarceration must be used with restraint. The Court nonetheless confirmed that at its root, like Aboriginal discrimination, anti-Black racism and poverty is first and foremost a societal problem.

The question of the impact of past discrimination and disadvantage ought to be viewed as a matter of context, not one requiring proof of direct causation. He was not compelled to make the choice he did, but his alternatives were circumscribed by his environment and the dearth of opportunities that were open to him. Mr. Kandhai’s moral responsibility ought to be weighed in light of the gravity of the offence.

However, the potential for human carnage represented by a loaded handgun is extreme. His fear of being victimized together with the violent deaths of people around him were a factor in arming himself. It is well established that denunciation and deterrence are the paramount sentencing principles for these offences (R v Graham, 2018 ONSC 6817). Mr. Kandhai understood that it was not necessary to arm himself with a loaded handgun and that it was a poor choice. The prospect of the offender being rehabilitated is better than his offence or his criminal record would indicate. The Court sentenced Mr. Kandhai to 49 months total which includes all credit due. 38 months was attributed to the firearms offence and 11 consecutive months was contributed for the firearms prohibition breach.

R c Adams, 2020 QCCQ 9127

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An 11 month consecutive sentence is reasonable for an Indigenous accused, who is serving a sentence for unrelated offences. He shall, for the next 2 years, respect conditions in a probation order, and is prohibited from operating any motor vehicle in Canada for a period of 5 years.

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The accused, Mr. Adams, is a 36 years old Indigenous male registered as a member of the Mohawks of Akwesasne. In 2011, he was spotted by police operating a motor vehicle while disqualified, but decided to flee the police officers. He pleaded guilty to charges of flight from police, of driving while disqualified and of breaching a valid recognizance binding him not to drive any motor vehicle. Subsequently in the same year, the accused stole his grandmother’s vehicle and was later involved in an accident. He pleaded guilty to charges of vehicle theft, driving while disqualified, and one count of breaching his recognizance by operating a motor vehicle while he was bound not to.

In 2019, the accused was spotted operating a boat full of bags containing tobacco. The accused was enroute to offload the cargo, but the RCMP marine patrol blocked him, whereby the accused rammed the RCMP vessel, capsizing his own boat. He pleaded guilty to charges of possession of unstamped tobacco and obstructing police officers. The last event happened in 2020. Police observed and tried to intercept two snowmobiles with sleds they thought were transporting illegal tobacco. One of the snowmobiles rammed the police while the other, operated by the accused, got away. The accused was charged and pleaded guilty to the possession of this unstamped tobacco, as well as to charges of breaching his recognizance for not showing up in Court, and for possessing illegal tobacco while it was prohibited by the recognizance. The accused is charged by both the provincial and federal Crown. The provincial crown is prosecuting for the 2011 events, while the federal crown is prosecuting for the 2019 and 2020 events.

Further investigation revealed he did not spent the 8 year period avoiding the law while staying out of trouble. He was in fact detained in the United States for an offence of conspiracy to possess with intent to distribute and distribution of controlled substances committed in 2012. In coming to Canada and in committing the 2019 and 2020 crimes, he breached his supervision order.

According to the Gladue report issued, as a child Mr. Adams experienced different forms of abuse and neglect, abandonment, lower level of education, and the normalizing of substance abuse and smuggling. He also endured separate traumatic events that included the death of his father and a very close uncle. As an adult, he has been living in a hopeless state of mind, dealing with a dependence on alcohol and drugs and is currently incarcerated. Mr. Adams has two children he has not been present to see grow up, because of time spent in jail since their birth. The only mitigating factor for Mr. Adams, however, seems to be the plea of guilt. The quantities seized in each file of unstamped tobacco is important (1274 kg in the 1st file, and 773 kg in the second file). Both these crimes were committed recently, after being released from the United States.

Considering the priors convictions, the gravity of these offences, the need for deterrence, the passage of time, the Court finds a lower sentence would be unreasonable, given the accused is not to this day rehabilitated, as can be seen from the facts in the smuggling files. Because the 2011 events have nothing to do with the 2019-2020 events, these sentences need to be served consecutively. The 11 month sentence should be served consecutively to the sentence being currently served.

R v Ingram, 2020 BCPC 168

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The Court concluded that the joint submission put forth by counsel is appropriate given the unique circumstances of the Indigenous offender who committed intimate partner violence against his late Indigenous partner. The sentence imposed is 60 days’ new jail to be served in the community in the form of a conditional sentence with conditions, followed by a 12 months probationary term.

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Mr. Ingram has admitted, through his guilty plea, that he assaulted his intimate partner contrary to s 266 of the Criminal Code. Counsel gave a joint submission on sentence, in which the Court may only depart 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). The Court must also consider what impact, if any, the COVID 19 pandemic has had on the sentencing process (R v Stevens, 2020 BCPC 104).

Mr. Ingram got into an altercation with Ms. Ryan and the police were called. During the course of that altercation, Mr. Ingram would not allow Ms. Ryan to leave. He pushed Ms. Ryan and then bit her on the face. The police arrived soon thereafter and took a statement from Ms. Ryan. They saw physical swelling to her face where she had been bitten. Ultimately charges were approved and a warrant was issued for the arrest of Mr. Ingram. Ms. Ryan, did not deserve what happened to her and needs to be recognized for the vulnerable person that she was. Ms. Ryan, has passed, having died of a drug overdose. She was a First Nations woman. It is often difficult to reconcile the reality of giving meaning to the principles of sentencing applicable to Aboriginal offenders when the victim, as per s 718.201 of the Criminal Code, is herself an Aboriginal female victim.

Mr. Ingram is a member of the Haida Nation, identifying with the Old Masset Band. When it comes to Gladue factors, Mr. Ingram’s parents are residential school survivors. The ill effects that have followed down through the years have resulted in him accumulating a seven page criminal record at the age of 47. Mr. Ingram has some 11 convictions for breach of undertaking or recognizances of bail and some 12 convictions for breach of probation, four assaults with a weapon, one assault causing bodily harm, and six uttering threats. Many of the convictions are designated as K files, which in British Columbia is a designation that the offence involves domestic violence, now more commonly known as intimate partner violence. However, Mr. Ingram has accumulated zero breaches since the offence date while being on very strict bail conditions, including a curfew. It has included Mr. Ingram becoming, perhaps for the first time in his adult life, a sober and drug free individual who has sought out and taken counselling.

Law Society of Ontario v Bogue, 2020 ONLSTA 11

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An Indigenous lawyer from Ontario brought two motions seeking various relief, the majority related to issues considered and rejected in other proceedings. The lawyer was disrespectful and issued threats of legal proceedings against the panel. Though the lawyer did raise three new issues, the motions are dismissed, but without prejudice to bringing these motions again. If he does proceed with his motions, he would have to file the necessary materials, conduct himself in a civil manner, and pursue only matters that had not already been determined.

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Gina Papageorgiou Spirit Warrior [“Lawyer”] is an Ontario lawyer who identifies as non-status Métis and as a member of the Kinakwii Nation/Confederacy. The Lawyer has been before the Law Society Tribunal [“Tribunal”] in a number of motions related to his capacity and his competence. In this matter, he brought two motions seeking 10 heads of relief. His motions were dismissed without prejudice to his bringing these motions again, upon the filing of proper materials. The Lawyer did not file a motion record, factum or book of authorities as required by Rule 8.2 of the Tribunal’s Rules of Practice and Procedure [“Rules”].

At the outset of the motions hearing, it was advised that it was not possible to consider his motions without the required materials. The Lawyer refused to follow instructions so that a schedule could be established for the exchange of materials to allow his motions to be heard on their merits. This is an abuse of the Tribunal’s process. Parties before tribunals are expected to conduct themselves with courtesy and respect (Cameron v Ontario (Training, Colleges and Universities), 2011 HRTO 2240). The Lawyer’s attempt to re-litigate matters already raised, determined against him and under appeal is an abuse of process. He addressed the participants in a disrespectful manner and issued threats.

The Lawyer’s threat that the adjudicator would become a personal defendant before the International Court of Justice if there is no agreement to his demands was an abuse of process. Although the Lawyer was representing himself, the Rules of Professional Conduct still apply, which specifically prohibits lawyers from threatening legal proceedings to achieve a quid pro quo. Like previous panels in this matter, the Tribunal acknowledges the historical mistreatment of Indigenous People in Canada and the need for reconciliation. The fact of this history, however, does not mean that the Tribunal lacks jurisdiction, that its panel members are automatically biased or that there has been any attempt in these proceedings to be disrespectful or cause cultural genocide.

If there is respectful conduct and compliance with the Rules, he could complete his appeal materials and pursue his appeals on their merits. The items in his motions which are new are: 1) his request for an order to consolidate the two appeals. His last motion in this regard was dismissed because the capacity proceedings were not yet concluded, but they are now and so this request can be made again; 2) an order for relief from compliance with the Rules regarding transcripts in respect of the capacity appeal. His request for relief from compliance with the Rules regarding his competence appeal was dismissed, but has not yet been adjudicated with respect to the capacity appeal; and 3) an order that the Law Society of Ontario [“LSO”] pay for a lawyer for the Lawyer for his appeals and his motion for relief from compliance with the Rules.

This is an interesting motion raised by the Lawyer, who says that having found that he is incapacitated, the LSO cannot then expect the Lawyer to act for himself in his appeals (Law Society of Ontario v Burtt, 2018 ONLSTH 63). The Lawyer did not provide any evidence as to what attempts he has made to retain a lawyer, what circumstances prevent him from doing so or any information as to whether he has sought assistance from volunteer duty counsel. For greater clarity, until the Lawyer files the required materials, no hearing or management conferences should be scheduled.

R v BTL, 2020 BCPC 185

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The Court imposed a custodial sentence on a young Indigenous first time offender that sexually assaulted his young cousin. A 90-day custody and supervision order served concurrent with a two-year intensive support and supervision program is determined to be best suited to promote his rehabilitation and is in harmony with all the Youth Criminal Justice Act’s principles and purpose.

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An Indigenous youth, BTL, at the age of 14, invited his then 13 year old cousin, SP over to his residence for a visit where he forced unprotected sexual intercourse on her. SP disclosed the assault to her mother who then reported it to police. BTL claimed that he had no memory of the event but his DNA was found in the victim’s underwear. He subsequently pleaded guilty to the offence of sexual assault.

BTL is now 16 years old. He is Carrier and a registered status member of a First Nation. His Pre-Sentence Report described the adverse impact of colonization on the Carrier people and his Nation, that included the legacy of residential schools, child apprehension, poverty, poor health, unemployment and substance abuse. BTL experienced a difficult and chaotic childhood rife with domestic violence, drug and alcohol misuse, criminality, instability and dysfunction. The Ministry of Child and Family Development became involved with BTL’s family due to violence, alcohol and drug intoxication, neglect and parental inability to care for the children.

BTL has a number of developmental, cognitive and psychological issues as a result of his prenatal exposure to alcohol and unstable childhood. He suffers from unspecified seizures and displayed extreme behavioural issues in school, leaving without completing Grade 8. Presently, he lives an empty, solitary life at home devoid of any community, prosocial or cultural activity and has succumbed to intergenerational substance misuse. He has no prior criminal record, however, he does have a poor history of reporting to his Youth Worker and attending appointments. As is his right, BTL refuses to discuss with anyone the circumstances of the offence.

The Youth Criminal Justice Act [“YCJA”] provides a detailed sentencing regime governing the sentencing of youth offenders. The focus of sentencing under the YCJA is balancing conflicting principles to arrive at a sentence tailored to the individual circumstances (R v Okemow, 2017 MBCA 59). Sentencing youth pursuant to the YCJA is a context-specific approach unlike the sentencing regime for adult offenders set out in s 718 of the Criminal Code. The YCJA places mandatory restrictions on the use of custodial sentences. The Court concludes, however, that the serious and violent nature of the offence BTL committed against SP precludes them from imposing an alternative to a custodial sentence.

R v TK, 2020 SKQB 262

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The Court allowed an Indigenous youth’s application for judicial interim release pending trial for first-degree murder. The Court accepted that the Gladue principles were relevant to his application for bail under the Youth Criminal Justice Act, SC 2002, c 1, particularly as they pertain to the secondary and tertiary grounds. The strength of the Crown’s case was not strong, the youth would be in pre-trial detention for a considerable length of time before trial, and a release plan with extensive conditions was proposed by defence counsel. 

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 T.K. is a 16-year-old male who stands charged with first-degree murder in the death of D.D. contrary to s 235 of the Criminal Code. He attended a house party in Regina, Saskatchewan in which it is alleged he brought the suspected murder weapon, a machete. An altercation broke out, and when police were called the next day, D.D. was found dead in the house from severe lacerations to his skull, similar to what would be from a machete. T.K. is one of four young persons charged with first-degree murder in D.D.’s death. Two adults also face first-degree murder charges in respect of his death. Counsel for the Crown served notice that it will be seeking an adult sentence in the event T.K. is convicted of this alleged crime, in which he has elected to be tried by a judge and jury.

T.K. has applied for judicial interim release pending his trial pursuant to s 28 of the Youth Criminal Justice Act [“YCJA”]. He asks that he be allowed to reside with his mother at her home in Regina pending his trial on the murder charge. The YCJA commends judges to release young persons from detention pending trial, even in cases where the young person is charged with an extremely serious criminal offence for which the Crown will be seeking an adult sentence upon conviction.

T.K. is an Indigenous person of Cree descent. Consequently, Gladue factors are relevant and must be taken into consideration on this bail application (R v Gladue, [1999] 1 SCR 688 [“Gladue”]). T.K. had been in the care of the Ministry of Social Services from age 11 to 15. T.K.’s youth record is lengthy, commencing when he was only 14 years of age. At present, T.K. is detained at the Paul Dojack Youth Centre [PDYC], where he has Level 4 status. This status offers T.K. the greatest flexibility at that centre. T.K. is actively pursuing his Grade 10 education and is apparently doing well in his studies. He proposes to continue with his education if he is released. The Crown has not proved on a balance of probabilities that if released from PDYC, there is a “substantial likelihood” T.K. will commit a serious offence.

The Court analysed the strength of the Crown’s case against T.K. on first-degree murder. It is not strong. Apart from T.K. being present at the scene, there is no evidence currently which physically links T.K. to the commission of the offence or to its aftermath. If T.K.’s detention continues, he will be detained for a considerable length of time before he is tried on this offence. No preliminary inquiry has yet taken place, and none is scheduled until March or April 2021, at the earliest, approximately one year after the date of the offence. Once it is concluded, and if T.K. is committed to stand trial on this offence, it will be many more months before his trial would commence.

Taking all considerations into account and mindful that T.K. is a young person, his detention pending trial should be the very last resort and ordered only where no other alternative is available. The Court is satisfied that his application for judicial interim release should be granted and orders that T.K. be released from the PDYC with terms and conditions.