Tag Archives: Gladue

R v Young, 2021 BCPC 6

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An offender, charged with possession of cocaine for the purposes of trafficking, is non-Indigenous but resides in a small isolated First Nations community, and identifies as Haida. The Court, after weighing the evidence and the principles of sentencing, applied a restorative justice approach, and determined that a one-year period of incarceration followed by two years’ probation is a fit sentence.

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In 2018, the RCMP received an anonymous tip regarding the drug trafficking activities of Frank Young and his wife Roberta Young, who reside in Skidegate, a small isolated First Nations community. After surveillance on the Young’s, police officers subsequently attended the residence and Mr. Young was arrested. Various types of drug paraphernalia was seized, including cocaine that would have been sold, at a minimum, for a total price of between $6,720 and $8,400. In 2019, Mr. and Mrs. Young were jointly charged with a single count of possession of cocaine for the purpose of trafficking. Mr. and Mrs. Young both entered pleas of “not guilty” in court in 2020, however, Mr. Young changed his plea from “not guilty” to “guilty”.

Mr. Young is not biologically Indigenous, nor a member of the Skidegate Band and he is not a citizen of the Haida Nation, although he considers himself Haida. Mr. Young described his childhood as being “normal.” Mr. Young met his wife in 1978 and were married in 2000 and stayed together until recently, when Mrs. Young left him. Together they have four children now adult ages. Mr. Young considers himself a high functioning addict, who was able to sustain a long career and raise a family without criminal issues.

As an adult, Mr. Young developed a drug habit and his social peers became mostly other drug users. He began using cocaine in his mid-20s, consuming half a gram to one gram of powder cocaine every weekend. Mr. Young has a dated criminal record that is not particularly relevant to this sentencing, given the time that has passed and the nature of the three convictions. Mr. Young experienced some difficulty with his addictions during his career, but maintains having control over it. The Deputy Chief Councillor for the Skidegate Band Council, has known Mr. Young for in excess of ten years and directly contradicts Mr. Young’s statement that he never sold drugs to children. He states that even while Mr. Young was working, there are three main families that traffic drugs in Skidegate, with Mr. Young’s family being one of them.

There is nothing to equate Mr. Young’s life experience with that of the Haida people specifically or Indigenous peoples in Canada generally. Mr. Young’s circumstances are not unique from those of other non Indigenous offenders. There is nothing in his personal circumstances, or in the manner Mr. Young committed the offence, that leads to the conclusion that Mr. Young’s moral blameworthiness is lessened due to systemic factors or individual Gladue factors. Just because an offender who is not biologically Indigenous self-identifies as Indigenous does not mean that they are entitled, as a matter of law, to have the sentencing judge consider them an Indigenous person for purposes of s. 718.2(e) and the Gladue analysis (R v Antoine, 2017 BCPC 333; R v Lawrence, 2018 BCSC 1319; and R v Kreko, 2016 ONCA 367).

In the sentencing context for the non-biologically Indigenous offender who self-identifies as Indigenous and seeks the benefit of s. 718.2(e) and the Gladue analysis, a number of factors are considered. Although Mr. Young is not an Indigenous offender, it is appropriate to consider a restorative justice approach to his sentencing, albeit it in a modified form. With respect to Indigenous communities, restorative justice ensures that the offender’s sentencing reflects an understanding of the specific First Nations’ cultures, traditions, and hopes for the future. It also means addressing local issues by engaging with the local community. The Community Impact Statement presented on behalf of the Skidegate Band Council served the purpose of enlightening the Court about the local community and allowed the victims of drug dealing and drug addiction in Skidegate a say in the outcome of Mr. Young’s case.

Based upon the entirety of the evidence, Mr. Young falls within the category of busy retail seller or full-time commercial operation. Mr. Young’s moral blameworthiness is at the highest end of the spectrum. The uniqueness of Mr. Young’s situation allows for a significant reduction of sentence from 18 month’s incarceration. However, there should not be a reduction with regard to the two years’ probation, despite the ongoing COVID-19 pandemic, as it will not negatively affect Mr. Young’s health issues, warranting a shorter period of probation (R v Reimer, 2020 BCCA 102). A one-year period of incarceration is a significant reduction from 18 months incarceration, and followed by a two-year period of probation, it is the minimum sentence that the Court can impose. Any lesser sentence would be unfit.

R v SEL, 2020 NWTTC 03

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An Indigenous man without any previous criminal record, was charged with one count of sexual assault. The Court took into account the purpose, principles and objectives of sentencing, the circumstances of the offender, including his associated Gladue factors and case law. A sentence of 12 months’ imprisonment to be served in the community was imposed.

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SEL is a 29 year-old Indigenous man charged with one count of sexual assault. The victim JM regarded SEL as a very close friend. She had no reason to believe that by allowing him to sleep on her sofa, she was exposed to a risk of the violation of her sexual integrity. A major sexual assault is of a nature of character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm whether or not physical injury occurs (R v Arcand, 2010 ABCA 363). SEL’s entry into JM’s bedroom, in her own home, as her very good friend, knowing she was unconscious and unresponsive, supports classifying his sexual assault on her as major. Any reasonable person could foresee the psychological harm that did ensue to JM as a result of the commission of this sexual assault in these circumstances despite there being no physical injury.

In determining the sentence, the Court considered that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention paid to the circumstances of Indigenous offenders. The Pre-Sentencing Report details that SEL was raised in a traditional lifestyle and is close to his parents and grandparents, who all attended residential schools. SEL was exposed to significant alcohol abuse and violence as a child but reports feeling loved and supported by his parents. He is interested in bettering himself, including addressing his issues with alcohol. SEL has no criminal record, has held gainful employment in the past and has served his community as a town councillor. His Pre-Sentence Report details signs of remorse.

A period of 12 months’ imprisonment is imposed. His service of the sentence is to be done in the community rather than in prison. It would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. This sentence may also aid the community in healing and possibly lead to a restorative justice opportunity wherein if JM chooses, she may allow SEL to personally express his remorse to her. For the duration of his 12 month sentence, he will be bound by a number of conditions pursuant to section 742.2 of the Criminal Code. Following his sentence, he will be subjected to a probation for a period of 18 months with a number of conditions as well.

R v LR, 2021 BCPC 7

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Although the sentencing judge still views a new joint submission of 180 days jail plus probation and mandatory ancillary orders as unduly lenient for an Indigenous man’s public and violent attack on his spouse at an elementary school in front of their child, it does not meet the threshold to reject the joint submission.

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L.R. is before the Court for sentencing a second time after having pleaded guilty in 2020, to three offences charged as a result of a violent altercation with his former spouse and the investigating RCMP officers. Joint submission by counsel was rejected for being unduly lenient (R v LR, 2020 BCPC 80 (CanLII)). Counsel has returned to Court with a new joint submission for a global sentence of 180 days jail plus probation and mandatory ancillary orders.

L.R. and C.L. met in highschool and cohabitated for ten years from 2008 to 2018 and are the biological parents of two children, one aged eight years old, the other three years old. L.R. came to an elementary school with his son to attend a birthday party where he encountered C.L. in the school parking lot. L.R. says C.L. showed him nude or “near nude” photographs of herself she had sent a number of friends and relatives. He became angry and began arguing with her. C.L. then picked up her son and ran to the school office and asked the receptionist to call the police. Enraged, L.R. chased after C.L. When he caught up with her in the school office, he grabbed her hair and began punching her in the head, even though at the time she was holding their child. He then threw C.L. on the floor and began kicking her in the ribs. Throughout this assault, L.R. was yelling at and threatening to kill C.L.

Eventually the staff succeeded in separating L.R. from C.L. L.R. took their son and left the school. The staff complained to the RCMP, who came to the school where they found C.L. L.R. left the school with his son and drove to his parents’ residence and asked his parents to keep his son safe. L.R. picked up a collapsible baton and a hunting knife at his residence and then drove to the house of his friend. In an attempt to locate him, the police called L.R.’s cell phone where he answered and uttered threats. The constables attended the friend’s residence where they believed L.R. might be hiding. L.R. was caught inside a smoke shack with the weapons. He continued to utter threats, then eventually held his weapons up and took a half step forward and was pepper sprayed.

While in custody, L.R. wrote apology letters to C.L., his son, and his parents. L.R. says he did not deny making threats to the officers or swinging the baton, but did not recall his interaction with the police, other than being pepper sprayed. L.R.’s present circumstances and antecedents are well documented in the presentence reports. L.R. is a member of a First Nation and was 27 years old at the time of the offence and 28 at sentencing. Until his banishment as a result of the offences, L.R. lived most of his life in the First Nation, as did most of his extended family. L.R. did work sporadically for the First Nation’s village government as a labourer, however, he was unable to sustain steady employment. Nevertheless, L.R. actively harvested fish and game to provide for his family, community and Elders.

C.L. and L.R.’s relationship was discordant. A social worker of the respective Child & Family Services Society, blames their problems on L.R.’s abusive behaviour. She depicts C.L. as the victim of the worst case of battered wife syndrome she has ever worked with. L.R. and C.L. separated permanently as a result of the school incident. After L.R. and C.L. separated, the children now live with C.L. At the hearing, the Court was not aware L.R. had issues of substance misuse. The presentence reports prepared for this continuation of the sentencing hearing tell a very different story. L.R. admitted to “selling and using cocaine” daily up to the time of his arrest.

While on remand at the Kamloops Regional Correction Centre, L.R. completed the 12-session Substance Abuse Management program and the 10-session Respectful Relationships programs. Since his release, L.R. sought and participated in individualized addictions and anger management counselling with an addiction specialist with the Terrace and District Counselling Services Society. L.R. does not speak or understand his Indigenous language nor does he participate in the spiritual or cultural activities to any significant degree. The Presentence Report and Gladue Report reference a number of support letters from Elders acknowledging L.R. as a skilled and generous hunter and fisher who provided sustenance fish and game to the community.

Although his grandparents attended residential school, L.R.’s upbringing was free of any trauma, physical or emotional abuse, neglect, abandonment, substance misuse, domestic discord or violence. L.R. grew up hunting and fishing with his father and extended family. L.R. remains close to his parents and siblings who have supported him throughout these legal proceedings. As a result of L.R.’s charges, his First Nation’s village government banished L.R. The village sent a letter to the RCMP and Terrace Crown Counsel advising that out of concern for the well-being of their citizens, the village government banished L.R. indefinitely from attending until he seeks medical or therapeutic attention for his actions and proves he is fit to return to their community.

While they are not immutable or sacrosanct, joint submissions should only be rejected in exceptional circumstances (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]; R v Spencer-Wilson, 2020 BCPC 140 (CanLII)). There are exceptional circumstances in this case to justify a lesser period of incarceration than might otherwise be imposed. Still, L.R.’s assault on C.L. at the elementary school was outrageous. The sentence that counsel now propose is still not one, absent a joint submission that the Court would otherwise impose. Although the Court believes the joint submission for 180 days jail sentence is unfit, perhaps even demonstrably unfit, it is unable to conclude its acceptance would cause a reasonable person to conclude “the proper functioning of the justice system had broken down” (Anthony-Cook). L.R. has 204 days of pre-detention credit, and has served the 180 day jail sentence. He is subject to an 18 month Probation Order with terms and conditions.

R v Hall, 2021 ONSC 420

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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.

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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 Simon, 2020 NWTSC 46

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An Indigenous offender convicted for a major sexual assault, has been designated a Long Term Offender and sentenced to a prison term of 6 years and 8 months, with credit for time spent on remand. The offender has considerable issues to address to overcome his substance abuse disorder and traumas from his past, and maintain a pro-social lifestyle. A jail term should afford him an opportunity to have access to the programming that he needs.

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Following a jury trial held in Inuvik, Mr. Simon was convicted for a sexual assault committed against HK. The background that led to Mr. Simon’s conviction was that he and the victim had known each other for many years. On the day of the incident, they had spent some time together on the streets of Inuvik, drinking. They went to the apartment of someone that the victim knew, looking for more alcohol. Because no one was home, they broke into the apartment and stole mickeys of vodka from the fridge. They then left the apartment ending up in a staircase where they drank the mickeys. At some point Mr. Simon started pushing the victim on the chest with his hands until she fell onto her back, where she was subsequently sexually assaulted. Mr. Simon then left the building. Eventually, the victim got dressed and went directly to the warming shelter where she called the RCMP.

Mr. Simon is now 39 years old. He is Gwich’in, which engages the special legal framework that governs the sentencing of Indigenous offenders. That framework applies to Dangerous Offender and Long Term Offender proceedings (R v Ipeelee, 2012 SCC 13; R v Boutillier, 2017 SCC 64). Mr. Simon’s childhood was deeply traumatic. He does not know who his father is and lived with his mother until he was 5 years old. After that, for many years he lived mainly with his grandfather, whereupon Mr. Simon suffered very serious physical and sexual abuse at the hands of his grandfather between the ages of 5 and 18. This abuse happened when his grandfather was intoxicated. Mr. Simon witnessed violence and fights in the home on a regular basis.

When Mr. Simon was 14 years old, his mother was stabbed to death. He believes, and has for years, that his grandfather was responsible for her death. He has also suspected for years that his grandfather may in fact be his biological father. Mr. Simon began consuming alcohol at a very young age, around 5 or 7 years old, and was using alcohol regularly before he turned 12. When he was 11 years old a relative introduced him to sniffing gasoline. He began sniffing gasoline, propane and other inhalants on a regular basis. All his life, he was never cared for properly, nor had rules or structure. He went hungry and he did not have proper clothing for the seasons. Mr. Simon has an extensive criminal record which includes a wide variety of offenses ranging from relatively minor offenses to very serious ones.

Although Mr. Simon believes that the death of his grandfather sets the stage for a major change in his life, it is likely that any significant change will require intensive therapeutic intervention and ongoing support. His rehabilitation, as well as the protection of the public, require that he be subject to external controls beyond the reach of the term of imprisonment that must be imposed for his sexual assault of HK. Considering the fact that Mr. Simon has no impediment, cognitive or otherwise, to taking treatment and programming, that he is motivated and has engaged in programming in the past, it is not necessary to have him subjected to outside controls for a further 8 years after the completion of the custodial portion of his sentence.

R v Olson, 2021 BCSC 61

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An appropriate cumulative sentence of 11 and ½ years is imposed for an offender found guilty for a string of offences that are violent. Despite a tenuous connection to some Indigenous heritage, a Gladue report was ordered and considered in the sentencing process.

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Mr. Olson was found guilty, following a trial, of six counts contrary to the the Criminal Code from events that took place in 2017, including assault with a weapon, contrary to s 267(a); the reckless discharge of a firearm; possession of a loaded prohibited firearm (a sawed off shotgun) without a licence; possession of a firearm while prohibited; possession of stolen property in excess of $5000; and resist or wilfully obstruct a peace officer.

A Gladue report was obtained for Mr. Olson upon the Crown learning of possible Indigenous heritage. Mr. Olson, now 41, has a very lengthy criminal record, reaching back to 2001, with 58 prior convictions. Mr. Olson had a troubled childhood and felt unfairly treated by his stepfather. He recently reconnected with his mother and learned that there could be some Indigenous heritage on his mother’s side, that is a great, great grandmother, was believed to be First Nations. According to the Gladue report, Mr. Olson has six children with different mothers, and maintains some limited contact with one of his children. The Gladue report writer, noted that the Indigenous lineage could not be independently corroborated, and focussed on corrections and community resources available to Mr. Olson arising out of this somewhat tenuous connection.

It is clear from the nature of his offences and the risk of Mr. Olson reoffending that the principles of deterrence and denunciation are paramount, along with the protection of the public. However, there is a potential for rehabilitation that must also be taken into account, including considering the principles set out in s 718.2(b), (c), (d) and (e), that is, parity of sentencing, the totality principle, and restraint in imposing terms of imprisonment.

This string of offences is long and involves violence. Although there are connections between some of the counts, the indictment has a number of offences with slight or no connections. It is difficult to determine an appropriate and fair approach. Concurrent sentences are used where appropriate, but some of the sentences must necessarily be consecutive (R v M(CA), [1996] SCR 500). A total of 11 1⁄2 years, with credit for time served, is an appropriate cumulative sentence of this series of offences, and does not offend the totality principle.

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.

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.

Indigenous Law Centre CaseWatch Blog

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.