R v Runions, 2021 ABQB 67

Posted on February 12, 2021 by thp151

Although Gladue factors reduced an Indigenous offender’s overall blameworthiness, it was not enough to persuade the Court that he is not a risk to public safety or can be managed in the community. He is designated a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

Indigenous Law Centre – CaseWatch Blog

In 2019, Dillion Richard Runions pleaded guilty to one count of aggravated assault, contrary to s 268 of the Criminal Code, and a further count of breaching an undertaking given to a police officer, contrary to s 145 (5.1). The aggravated assault consisted of Mr. Runion, who was unprovoked, slamming a machete into the neck of his unsuspecting victim. This vicious attack was nearly fatal with the victim surviving only because of timely medical intervention. At the time of the machete attack Mr. Runions was bound by the terms of an undertaking given to a police officer, which stipulated that Mr. Runions should not be in possession of a weapon. Both offences occurred in 2017.

The Crown brough an application to designate Mr. Runions a dangerous offender and to be given an indeterminate sentence (R v Corbiere, [1995] OJ No 938; R v Bedard, 2009 ONCA 678; R v Gulliver, 2018 ABCA 387; R v Neve, 1999 ABCA 206; and R v Lyons, [1987] 2 SCR 309). Part of the prospective assessment of dangerousness, is answering the question of whether the behaviour is such that the pattern of conduct can be said to be substantially or pathologically intractable (R v Boutilier, 2017 SCC 64).

Mr. Runions spoke of a childhood history which included general family dysfunction, poverty, domestic violence, maternal substance abuse, abandonment, neglect, placement in foster care, and a chaotic life involving frequent moves and school changes. According to a Gladue report, Mr. Runions indicated that one of his placements involved a Métis family, and he was exposed to his Métis heritage, traditions, and cultural practices. Mr. Runions said he was sexually abused from a young age, and that he was sexually assaulted by one of his mother’s boyfriends and by a foster parent.

Mr. Runions told the Gladue report writer that he fled a group home at age 16 and joined a street gang called “Deuce’s of Central”. He said that he resided with gang affiliates until his first incarceration at 19, and then dropped out of school, consumed alcohol, used cocaine, trafficked in illegal substances, and engaged in negative and violent behaviour. Mr. Runions reported a sporadic work history including having worked as a cribber and a drywaller, his average length of employment was under six months, and his longest period of employment was two years. Mr. Runions reported that he was diagnosed as being bipolar disorder in 2005, depression and anxiety at 18 years old, and post-traumatic stress disorder in 2009. He also reported auditory hallucinations if he did not take various medications.

The quality and strength of the evidence of past and future events, together with the expert opinion concerning those events, demonstrates that it is likely Mr. Runions will cause death or injury through his failure to restrain his behaviour in the future. Mr. Runions has not yet received nor exhausted all treatment options that are available to him. In most cases through no fault of his own, Mr. Runions remains untreated in relation to some of his most pressing treatment needs. It is also notable that Mr. Runions, who has demonstrated a recently renewed interest with respect to his Indigenous background (having previously self-identified with Buddhism and later as a Muslim), at least while incarcerated, could elect to be placed within a separate multi-target stream such as the ICPM Multi-Target Program which emphasizes Indigenous healing through traditional and cultural means, and importantly and supportively permits access to Elders for guidance and support.

Unfortunately, Mr. Runions cannot be trusted and his persistent disingenuous presentation makes treatment functionally impossible. It is also highly likely that Mr. Runions will resume gang-affiliations once released from custody. There is no suggestion in the evidence that he has ever succeeded in divesting himself (long-term) from his gang-lifestyle while not in a structured custodial setting. Mr. Runions acknowledged that he was still at the top of the pyramid when he was asked about his gang connections.

Mr. Runions has a very high risk for general recidivism and for violently reoffending. His Gladue factors does reduce his overall blameworthiness, but they do little to change the obvious gravity of the grave circumstances of the predicate offence, and the fact the Mr. Runions violently injured and endangered the life of three people in approximately a one-month period. The Gladue considerations do not persuade the Court that Mr. Runions’ risk to public safety can be controlled or managed in the community. Mr. Runions is a dangerous offender and he is sentenced to detention in a penitentiary for an indeterminate period. Given the circumstances, including the past criminal record, a fit and proper sentence in relation to the conviction under s 145(5.1) of the Criminal Code is 6 months imprisonment.

R v Hall, 2021 ONSC 420

Posted on January 26, 2021 by thp151

A Mohawk man has been designated a dangerous offender and sentenced to a period of imprisonment of 8 years in addition to the 769 days he has served since his arrest, followed by a Long-Term Supervision Order for 8 years. The protection of the public was paramount but it is not required that the offender should be subject to external controls for the rest of his life, as would be the case with an indeterminate sentence.

Indigenous Law Centre CaseWatch Blog

Edward Hall, a Mohawk man, has entered guilty pleas to the offences of aggravated assault, break and enter, choking, and failing to comply with probation. Mr. Hall is 51-year-old years old. At the time he committed the offences, he was bound by two probation orders relating to two convictions for aggravated assault.

Mr. Hall has a criminal record in both Canada and the United States. Between the two countries, he has been convicted of approximately 60 offences. His Gladue report provided a detailed history of Mr. Hall’s childhood. His mother was a registered Mohawk of Akwesasne band member and former resident. His father was half-Mohawk. Both died in 2019 while Mr. Hall was in custody. Akwesasne is a nation of Mohawk people situated along the banks of the St. Lawrence River. It straddles the border between the United States and Canada, and includes territory within the jurisdictions of New York State, Ontario, and Quebec. The Mohawks of Akwesasne have been severely impacted by policies of assimilation aimed at eradicating Indigenous cultures. The intense suffering these policies have caused have had intergenerational impacts that continue to be felt today.

The impacts of this intergenerational trauma are evident in Mr. Hall’s history, including the physical and emotional abuse he suffered as a child; his early addictions to alcohol, marijuana, and cocaine; his loss of his connection to his community; the lack of employment skills, education, and functionality; and the racism he has faced in various communities and institutions. Mr. Hall states that the trauma that he experienced as a child has stayed with him, where he has nightmares and flashbacks of abuse.

The Waseskun Healing Center [“Waseskun”] is recommended as an option for residential treatment that has a culturally focused approach. However, Mr. Hall’s prior history of community supervision is noted to have been poor in almost every instance. In addition, he breached the last probation order imposed upon him, both by committing the index offence and by engaging in smuggling to support himself.

Public protection is the general purpose of the dangerous offender provisions. The protection of the public is an enhanced sentencing objective for individuals who have been designated dangerous, even while sentencing judges retain the discretion to “look at the whole picture”. The sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the legislation (R v Boutilier, 2017 SCC 64; R v Spilman, 2018 ONCA 551). Mr. Hall’s most serious offences have occurred while he was in his 40s. This pattern, however, does not place him outside the statistical pattern in the literature that sees persons who share his characteristics significantly diminishing at least the frequency of their offending in their 50s and 60s.

Mr. Hall committed a vicious assault in the context of a planned home invasion offence while he was on two probation orders relating to two recent convictions for aggravated assault. He used a weapon and choked his victim to the point of unconsciousness. The public must be protected from conduct like this by Mr. Hall in the future. On the mitigating side, the Court considered Mr. Hall’s diminished moral blameworthiness for the offences given the impact of Gladue factors, and that he pleaded guilty to the predicate offences.

Mr. Hall is designated a dangerous offender. The custodial sentence of 8 additional years will bring Mr. Hall to the age of roughly 59.5 years. The Long-Term Supervision Order [“LTSO”] will continue until Mr. Hall is 67. The custodial portion of the sentence will provide Mr. Hall with time to take the treatment offered to him and demonstrate that he can apply any lessons he has learned to reduce his risk. Parole will be available to him if he makes sufficient progress. A lesser sentence will not adequately protect the public. The need to protect the public militates against awarding enhanced credit to Mr. Hall for his presentence custody of 769 days. Awarding enhanced credit would reduce the period of time for which Mr. Hall will be subject to outside controls. On the totality of the evidence, this is the least intrusive of the options to adequately protect the public against Mr. Hall’s future commission of murder or a serious personal injury offence.

As for the importance of treatment with a cultural component such as that offered at Waseskun, if Mr. Hall has access to treatment that incorporates Indigenous culture and values, this is for the good insofar as it may assist him with certain personal issues and in reintegrating into the community. In the event Mr. Hall makes sufficient progress with his skills-based treatment for anger management and substance abuse and reduces his risk of reoffending, he may apply to and be accepted at Waseskun. If Mr. Hall does not make progress during the custodial part of his sentence, he can expect that this opportunity will not be available to him, even while serving the LTSO, because he will be ordered to reside at a community correctional centre.

R v Blackplume, 2021 ABCA 2

Posted on January 15, 2021 by thp151

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.

Indigenous Law Centre – CaseWatch Blog

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.