Tag Archives: Aboriginal

R v Duncan, 2020 BCSC 590

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Application granted. The Indigenous accused is to be released on bail, subject to stringent conditions, on the tertiary grounds for pre-trial custody in excess of 90 days and concerns surrounding the COVID-19 pandemic in jails.

Indigenous Law Centre – CaseWatch Blog

This matter is a detention review hearing pursuant to s 525 of the Criminal Code. The 32 year old accused from Musqueam First Nation has been in pre trial custody for ten months. His custody relates to multiple alleged offences, including breaking and entering. As per the Gladue factors, his life reflects the intergenerational legacy of the horrific historical treatment of Aboriginal peoples in this country. The accused has a lengthy criminal history.

Counsel for the accused provided new evidence combined with a change in circumstances that warrants a re-visiting and reassessment of the restrictive and supervised treatment program at VisionQuest as a viable and proportionate alternative to the accused’s continued detention. It has culturally relevant programming and a high level of supervision.

The overarching question before the Court is whether the continued detention of the accused until his trial(s) is still justified on one or more of the three grounds specified in s 515(10) of the Criminal Code (R v Myers, 2019 SCC 18). The Court is satisfied that a release plan requiring the accused’s participation in VisionQuest’s isolated residential treatment program combined with strict mobility restrictions would be a culturally responsive and appropriate application of the Gladue factors in this particular case.

There also remains the question of the COVID-19 pandemic. Much of the case law that has developed thus far on this subject deals with the tertiary ground for detention. There are an increasing number of cases which have held that the risk of infection posed to inmates while incarcerated in detention centers awaiting trials is also a valid factor when considering the secondary ground for detention specified in s 515(10)(b) of the Criminal Code (R v TK, 2020 ONSC 1935).

The government is well aware of the risks involved and has implemented a number of measures designed to reduce the spread of the infection in jails. In this particular case Court already concluded that the accused’s proposed release plan satisfactorily addresses public safety concerns, however, COVID-19 concerns would have tipped the balance in favour of interim release rather than continued detention on secondary grounds. Although the break and enter offenses are serious, no physical violence was involved.

The accused is a drug addict with a criminal history of property crimes fuelled by his addiction. That addiction and most, if not all, of the disadvantages he has suffered in life are the product of the sad social problem that is the legacy of the mistreatment of Aboriginal peoples in Canada.

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.

 

Shiozaki v Aboriginal Mother Centre Society and another, 2020 BCHRT 10

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Ms. Shiozaki has no reasonable prospect of proving discrimination against non-Aboriginals working for the Aboriginal Mother Centre Society, therefore the complaint is dismissed.

Indigenous Law Centre – CaseWatch Blog

Ms. Shiozaki worked for the Aboriginal Mother Centre Society [“Society”] for about three months before being placed on administrative leave and eventually fired. She identified as “Japanese in origin”. Ms. Shiozaki alleged the President of the Society’s Board of Directors held discriminatory attitudes towards non-Aboriginal people and thought that only Aboriginal people should be working for the Society. She said her race, ancestry, and colour, as well as disability were factors in her negative treatment by the Respondents. The Society denied discriminating. They say that they never treated Ms. Shiozaki adversely because of characteristics protected by the Human Rights Code. Her employment was terminated because she committed fraud and breach of trust and bullied other employees.

The decision addressed three issues: 1) Ms. Shiozaki’s request for further document disclosure; 2) the Respondents’ application for dismissal; and 3) Ms. Shiozaki’s application for costs arising out of what she argues was improper conduct by the Respondents in the course of this complaint.

Ms. Shiozaki said the Respondents failed to comply with an earlier Tribunal order respecting seven categories of documents. The Respondents produced all documents ordered by the Tribunal. They were not required to create and produce affidavits about issues in contention, nor were they required to disclose documents protected by solicitor-client privilege. Therefore Ms. Shiozaki’s request for further orders respecting disclosure was denied.

There was no evidence to suggest that, generally speaking, the Society was an organization that favoured the interests of its Aboriginal staff. Because she felt she had been treated unfairly, her race must have been a part of that. Further, because she was on medical leave when a number of adverse decisions were made, that must have amounted to discrimination based on disability. This revealed a deep misunderstanding about discrimination and the context of Aboriginal people in Canada. This extended to the functioning of the Society itself, where Ms. Shiozaki argued the Society was engaging in discrimination by only providing services to Aboriginal mothers. The argument is further belied by the fact that the person hired to replace Ms. Shiozaki was not Aboriginal. Any connection between the Respondent’s conduct and Ms. Shiozaki’s protected characteristics was purely conjecture. The Respondent’s conduct was supported by sworn affidavits and documentary evidence. This complaint had no reasonable prospect of success and therefore dismissed.

Ms. Shiozaki argued that the Respondents engaged in improper conduct by using documents they obtained in the course of this complaint to fight her application for EI benefits. As the documents were all in the Society’s possession independently of this process, the Society was entitled to use them in other proceedings. The two pieces of information Ms. Shiozaki argued the Society had acted improperly on were not confidential to this process and therefore, there was no evidence the Respondents acted improperly in the course of this complaint and the application for costs was denied.

R c Dubé, 2019 QCCQ 7985

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After interpreting the new provisions that codify the consideration of Gladue principles at bail, specifically s 493.2(a) of the Criminal Code, the Court found no basis for detention of the accused if supervisory measures are established.

Indigenous Law Centre – CaseWatch Blog

The accused, Mr. Dubé, is an Aboriginal person and a member of the Opitciwan Atikamekw community. He is charged with a number of offenses, but he undertakes to respect all the conditions that the Court may impose. The prosecution objected mainly on the ground of the substantial likelihood that he would not comply with any potential conditions, as had been demonstrated by numerous past breaches. The accused has regularly found himself before the courts for assaults, threats, mischief, and thefts. There are about 20 breaches of conditions related to recognizances or probation orders and he has had several stays in prison.

The Court considered the new provisions of the Criminal Code that came into force concerning the principle of restraint, s 493.1, and the particular attention that must be paid to Aboriginal accused who are overrepresented in the prison system, s 493.2. Section 11(e) of the Charter enshrines the right not to be denied reasonable bail without just cause. Release is to be favoured at the earliest reasonable opportunity and on the least onerous grounds (R v Antic, 2017 SCC 27). The Supreme Court of Canada [“SCC”] examined the principles governing interim release and noted that nearly half of the individuals in provincial jails are accused persons in pre-trial custody, where the conditions are dire; Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions; such a situation can have serious detrimental impacts on an accused person’s ability to raise a defence in addition to proving costly for society; and therefore, pre-trial detention is a measure of last resort (R v Myers, 2019 SCC 18).

The SCC pointed out the recurring problem of the overrepresentation of Aboriginal people in the prison system. Based on section 718.1(e), the Court proposed a special approach to sentencing in light of the particular circumstances of these offenders whose lives are far removed from the experience of most Canadians. Judges were encouraged to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

The Gladue factors, with the necessary adaptations, are applicable to the hearing on interim release (R v Hope, 2016 ONCA 648). This Court places the accused’s lengthy criminal history with respect to breaches in the above context. The accused’s release plan with various supervisory measures put in place, while imperfect, makes sense given this Aboriginal context.

Note: French translation of R c Dubé, 2019 QCCQ 7985 found here.

R v Matchee, 2019 ABCA 251

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There were errors of law present in the sentencing judge’s assessment of the offender’s Gladue factors and moral blameworthiness. The sentence has been reassessed.

Indigenous Law Centre – CaseWatch Blog

Mr. Matchee appealed his seven-year custodial sentence on the basis that the sentencing judge erred by not giving effect to Gladue factors. The sentencing judge’s desire to avoid the appearance of a “race-based discount” was demonstrated by an error of law that Gladue factors do not apply to serious offences – Gladue factors apply to all offences. There was a failure to recognize a connection between the offender’s mother and grandmother’s attendance at residential schools and his current circumstances. In turn, Mr. Matchee’s mother’s substance abuse led to his eventual placement in foster care and abuses suffered there during the first 10 years of his life. The sentencing judge made an error to deny the link. Lastly, the view of any community on what is an appropriate sentence is not an animating principle of sentencing law in Canada – to the extent these comments impacted the sentence, this was an error. Due to these reasons, sentencing must be assessed again.

The harm to society in the undermining of people’s security and safety in their homes, as well as the harm to the victim, is significant in assessing the gravity of the offence. Mr. Matchee had many opportunities to leave but chose not to. He was on probation at the time of the offense and has a long-related record. The pre-sentencing report indicated a failure to take responsibility for his actions or has not taken any positive steps to try to address the underlying issues that have been identified. The factors identified above, in particular the lack of any stable home until 10 years of age, sexual and physical abuse, no meaningful connection with his mother or father, an interrupted connection with his Aboriginal culture, lack of education and employment, diminish his blameworthiness for the current offences.

Taking into account the errors in the application of Gladue factors and the inadequate assessment of Mr. Matchee’s moral blameworthiness, a fit sentence for this offender and these offences is a period of six years incarceration. The other sentences and ancillary orders are unchanged. The net sentence, after the deduction of three years 7.5 months credit for pre-sentence custody, is two years 4.5 months.

 

R v Georgekish, 2019 QCCQ 2341

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After weighing the sentencing principles with information provided by a Pre-Sentence Report and a Gladue Report, it was determined that deterrence and denunciation should heavily shape a fit sentence due to the gravity of the offence.

Indigenous Law Centre – CaseWatch Blog

The offender was intercepted by police on the highway in possession of a large quantity of cocaine she was sent to purchase with money from her sister, before she got back to her home community where she intended to sell it. The offender plead guilty and at the time of the offence, she only had a few prior convictions. She is a member of the Cree Nation and a mother of six children. The Court ordered a Gladue Report to be written in which it was determined that both her parents attended residential schools, and was the victim of years of neglect, violence and abuse. The offender suffered with addictions throughout her life starting at a young age, and she was placed in a youth protection program for multiple years away from her family. She had lost a child the year prior to the offence and had not received any grievance support or services.

The Court considered multiple aggravating factors such as the quantity of drugs the accused had in possession, the nature of the drugs, the risk of reoffending, past convictions, the lack of empathy and to take responsibility, but also the vulnerability of the community where the drugs were to be sold. The Court also considered the mitigating circumstances such as the guilty plea, the offender’s collaboration with the police, the crime being one transaction, and the historical and systemic factors as an Aboriginal offender. With these considerations in mind, the Court sentenced the offender to a 20-month detention sentence and a 3-year supervised probation.

Peepeetch v R, 2019 SKQB 132

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Application granted for a publicly-funded Gladue report. A Gladue report, however, is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible or appropriate source of such information.

Indigenous Law Centre – CaseWatch Blog

The applicant was convicted after a trial on charges of impaired driving and refusing to provide a breath sample. During the trial, he also pled guilty to a charge of possession of brass knuckles, a prohibited weapon. Following the trial, sentencing was adjourned so that a Pre-Sentence Report [PSR] could be prepared. Since the applicant is of Aboriginal heritage, the court directed that the report should contain information, such as Gladue factors (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218), particular to Mr. Peepeetch’s circumstances as the Gladue analysis is mandated by the Criminal Code. The applicant’s counsel submitted an application for a publicly-funded Gladue report as the applicant did not have the resources to cover the costs himself.

It was determined that when evaluating whether a publicly-funded Gladue report should be ordered, the following parameters must be met: i) the assistance of the Gladue report must be essential to the judge discharging their judicial function in the case at hand; and (ii) the authority to order for the preparation of Gladue reports should be used sparingly and with caution, in response to specific and exceptional circumstances (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; R v Sand, 2019 SKQB 18). Such circumstances exist where a PSR prepared by a probation officer is not capable of providing the information necessary to conduct the proper analysis under ss. 718.2(e), and there is no other effective method of obtaining the necessary information and bringing it before the court in a timely fashion.

When deciding if a publicly-funded Gladue report was appropriate in this case, the court considered a number of factors including the nature of the analysis called for by ss 718.2(e), the sufficiency of the information provided in the current PSR, and if that report is lacking the availability and likely effectiveness of other measures that may be taken to address the deficiencies. Further, the court decided that a Gladue report is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible, nor the only appropriate source of such information. Whether or not such a report is required is based on the context of the situation. It is the duty of the sentencing judge to ensure that the information they receive is relevant and necessary for such analysis. Overall, it was determined that the information contained in the PSR report was not sufficient for the court to carry out its judicial function in sentencing the applicant and thus, a publicly-funded Gladue report was ordered.

R v McGinn, 2019 ONSC 4499

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Joint submission for sentencing granted. After considering the Gladue report and at the offender’s request, part of the sentence will be spent in the penitentiary to take advantage of programming specific to Aboriginal offenders.

Indigenous Law Centre
Indigenous CaseWatch Blog

After a search of his vehicle, the offender was arrested for drugs and weapons offences. The nature of the drugs involved in this case, are highly addictive substances and this was an aggravating factor. The offender also had a lengthy criminal record, which is reflective of an individual with a substance abuse problem.

The mitigating factors included a guilty plea, as well he expressed insight into his problems. Drug and alcohol abuse, as well as suicide and mistreatment within his family were present in his experiences as a child. His childhood and adolescence were traumatic for reasons that were not of his making. The drug abuse that he fell into has contributed to his involvement within the criminal justice system. The offender recognized that drug addiction had led him down a bad path. His paternal grandparents remain supportive of him and are willing to have him live with them on his release from jail.

The offender’s Aboriginal background no doubt had an impact on him but he appears to have benefitted from involvement in programs for Aboriginal offenders while in custody. The joint submission was accepted, modified slightly to accord with the offender’s request to be housed in the penitentiary to take advantage of programming. The offender was sentenced to three years and nine months in jail, less days spent in presentence custody.

R v Boysis, 2019 ABQB 437

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An Indigenous man may have propensity for recidivist violence, but the Gladue factors support a reduced moral culpability.

Native Law Centre CaseWatch Blog

The accused was convicted by a jury for manslaughter and aggravated assault. The accused has a criminal record which included a prior conviction for manslaughter and other crimes of violence. A high risk of violent recidivism is present which requires intensive supervision and active management if he is to be released in the community. Concerns about the accused’s potential for recidivist violence and the safety of the public must be borne in mind during the proportionality analysis.

The accused is an Indigenous male of Cree descent and the Gladue factors in this case point to impacts of intergenerational trauma from the accused’s mother and maternal grandmother’s residential school experience. The impacts include alcohol and drug abuse, violence, low educational achievement, criminal involvement, loss of language, culture, and traditions. Gang activity is common in the accused’s home community, as well as family violence, extended periods of poverty and homelessness, childhood neglect, chronic unemployment, low income, suicide among immediate family members, and physical and sexual abuse.

The accused was remorseful and had made efforts to disengage from the previous gang connections and lifestyle. He also understands he needs help with his emotional and mental wellness. The reduced moral culpability played a significant role in determining a fit and proper sentence.

Taking into account all the circumstances, including the aggravating and mitigating factors, the accused’s reduced moral culpability, the range of sentence indicated by the authorities and the principles of sentencing set out in the Criminal Code, a fit and appropriate sentence for the manslaughter conviction is 9 years and aggravated assault is 4 years.

R v Newborn, 2019 ABCA 123

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Appeal dismissed. An accused is entitled to a fairly chosen representative jury, not to one with a particular composition. As well, the jury is entitled to have competing evidence on a critical issue before them.

Native Law Centre CaseWatch Blog

The Appellant was charged with murder for physically beating a man so severely that he died from the injuries two days later. The offence occurred on a train in front of other passengers, and was recorded by security cameras. The Appellant argued that the Crown could not prove the intent necessary for murder as the accused had a limited intellectual capacity with an IQ of 59 and a moderate cognitive impairment. The Appellant also challenged the jury selection process arguing that his right to a trial by an independent and impartial jury selection under s 11 (d) and (f) of the Charter had been violated, arguing that s 4(h)(i) of the Jury Act excludes persons who have been convicted of a criminal offence. This according to the Appellant is unconstitutional because it disproportionately excluded Aboriginal persons.

An accused is entitled to a fairly chosen representative jury, not to one with a particular composition (R v Kokopenance, 2015 SCC 28). The focus is on the process to select the jury, which must include the delivery of notices to citizens randomly selected from broadly based sources and the deliberate or systemic exclusion of segments of the population is not acceptable. Some limits on jury eligibility, however, are permissible.

It was concluded that the Appellant did not offer any satisfactory rational while his expert witness opinion would be admissible and beneficial to the jury, but the Crown’s rebuttal evidence on the same topic would not. While the Crown and defence experts approached the issue from slightly different perspectives, that does not reflect any error. Neither the Crown nor the defence is required to approach an issue in the way the other side frames it (R v DD, 2000 SCC 43). All of the evidence was relevant and admissible, despite its different assumptions and approaches. ­­The jury was given acceptable instructions regarding expert evidence from the trial judge.