R v Racette, 2020 BCPC 219

Posted on November 30, 2020 by thp151

The Court accepted a joint submission on sentence of two years and 77 days for a Cree Métis man’s aggravated assault against an intimate partner who was also Indigenous. The Court would have imposed a longer sentence in the absence of the joint submission, but the strict test for departure from a joint submission on sentence was not met.

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Johnathan Troy Racette, a Cree Métis of the Cowessess First Nation in Saskatchewan, has consented to remain in custody, ultimately entering a guilty plea that at or near Masset, in the Province of British Columbia, did commit aggravated assault of Kyla Fraser, an Indigenous woman, contrary to Section 268(2) of the Criminal Code.

This is a joint submission on sentence. The Court must apply the “public interest test” in deciding whether to agree to the joint submission or depart from it. It may only depart from the joint submission 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 [“Anthony-Cook”].

Mr. Racette and Ms. Fraser were in an intimate partner relationship described as “on-again/off-again” from approximately 2018 until the offence in 2020. The relationship had episodes of drug abuse and violence. Despite court-ordered conditions on remand which prohibited Mr. Racette from contacting Ms. Fraser directly or indirectly, she claims he routinely contacted her. Mr. Racette acknowledged communicating or attempting to communicate with Ms. Fraser during the early period of his incarceration in this matter. He is unclear of the frequency of such alleged contact and was unaware of some of the other individual messages given to Ms. Fraser.

Although there are Gladue factors to consider in regards to Mr. Racette, including a diagnosis of various mental disorders, experience of sexual abuse that he suffered quite young in an upbringing rife with poverty and substance abuse, but there is additional consideration as per s 718.201 of the Criminal Code. It states that a court in imposing a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

Mr. Racette has been working on his Grade 12 equivalency, but has not yet completed it. His employment history consists of mainly general labour jobs and drug trafficking at various times in his life. He currently has no source of income and is reliant upon income assistance and money that his mother provides to him. In discussing his anger, Mr. Racette describes that “he is ‘short-fused.’” According to an RCMP constable, a comprehensive threat assessment was completed by the Behavioural Sciences Group in relation to Mr. Racette which assessed him to be high risk to commit an act of violence against Kyla Fraser or any future intimate partner; and any person he associates with.

But for the joint submission, the Court would have incarcerated Mr. Racette for a significantly longer period of time than two years and 77 days. However, as per Anthony-Cook, the Court must agree to the joint submission, as it does not meet the “public interest” test.

R v Paquette, 2020 ABPC 173

Posted on November 24, 2020 by thp151

The Court here sought to impose a tailor-made sentence that considered the circumstances of the offence and of the Indigenous offender. In doing this, the Court weighed these factors to balance maintaining the protection of society by mitigating the risk of further violence while also arriving at a sentence that adopts rehabilitative measures to provide some prospects for reducing the risk of the accused to re-offend.

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Mr. Paquette entered a guilty plea to four charges emerging from two separate incidents. The first incident involved his girlfriend at the time. The two were drinking together when Mr. Paquette became angry and accused his girlfriend of lying. He then proceeded to beat and choke her severely. Shortly after, Mr. Paquette attempted to phone his cousin, and when they did not answer, he told his girlfriend that she was lucky, as his cousin was going to place her in the trunk of his car and bury her alive. In relation to this incident, Mr. Paquette entered guilty pleas to threats causing death, intimidation through threats of violence, and assault, causing bodily harm. Five months after this incident, Mr. Paquette was involved in an altercation with a stranger. Mr. Paquette and the stranger were standing on a train station platform when Mr. Paquette, unprompted, pushed the stranger off the platform. The victim was assisted by two other men back onto the station platform and was subsequently pushed off again by Mr. Paquette. After the victim fell to the ground, Mr. Paquette stomped on his head and rendered him unconscious. Regarding his involvement in this incident, Mr. Paquette pleaded guilty to aggravated assault.

This decision deals with setting a fit and appropriate sentence for Mr. Paquette for these crimes and in these circumstances. He is a status member of the Skatin Nation located in the lower mainland of British Columbia. Mr. Paquette’s mother, is a member of the Skookumchuk First Nation. In considering Mr. Paquette’s circumstances, the Court had the benefit of referring to three documents: a Gladue Report; a Pre-sentence Report; and a Pre-Sentence Psychiatry Assessment. These reports revealed that his childhood was complex and riddled with instability and trauma. He does not have a relationship with his father, and both his mother and grandmother (who acted as his primary caregivers) had issues with alcohol. Mr. Paquette says alcohol use has affected his life in many ways, and he too has dependency issues with it. Throughout his childhood, he experienced continuous physical, sexual and emotional abuse. The reports also revealed that Mr. Paquette has some cognitive difficulties, that were in part caused by a brutal assault that occurred when he was 11 or 12 years old.

The Court found that in balancing Gladue factors, and all of the principles of sentencing applicable here, 18 months for the aggravated assault, and six months consecutive for the assault and threats involving Mr. Paquette’s girlfriend, as well as a two-year term of probation would constitute as a fit sentence here. In providing further insight into this decision, the Court stated that the custodial sentence of 24 months gives effect to denunciation, deterrence, and concern for public safety. Whereas a period of two years of probation with conditions is intended to address the rehabilitative purposes of sentencing.

R v Amaaq, 2020 NUCA 11

Posted on November 23, 2020 by thp151

The Court of Appeal overturned a conditional sentence order of two years less a day and a consecutive three year suspended sentence for aggravated assault against an Inuk mother found guilty of committing these offences against her five-year-old child. The Court of Appeal varied the sentence for aggravated assault by imposing a term of imprisonment of two years less a day followed by a three year period of probation to be served consecutively to the two year conditional sentence for failure to provide the necessaries of life. At the joint request of the Crown and defence counsel, Ms. Amaaq’s obligation to serve jail time was stayed to avoid jeopardizing the future welfare of another child who would likely be placed in foster care if she were imprisoned.

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The Crown appeals sentences imposed by the Nunavut Court of Justice on December 12, 2019 for two offences the respondent committed against her five-year-old child over an approximately ten-week period – a two-years-less-a-day conditional sentence order for failing to provide the necessaries of life and a consecutive three-year suspended sentence for aggravated assault. The Crown requests that this Court set aside the sentence for aggravated assault and impose a jail term “in the range of 2 years less a day”, as this is the second time the respondent has been convicted of assaulting this child.

The five-year old’s body was covered in bruises and bite marks. He suffered severe internal injuries – a lacerated liver and spleen, a kidney contusion, a fractured rib and an obstructed bowel. The youngster told the examining nurse he could not recall the last time he ate. The child’s height and weight was in the fifteenth percentile for his age.

The sentencing judge tried to produce a sentence faithful to Gladue factors. However, a noncustodial sentence for the aggravated assault conviction fails to take into account Parliament’s direction in section 718.01 of the Criminal Code to “give primary consideration to the objectives of denunciation and deterrence” if the offender abused a person under eighteen years of age. The Court grants leave to appeal and varies the sentence for the aggravated assault conviction by imposing a term of imprisonment of two years less a day followed by a three-year probation period to be served consecutively to the two-year-conditional sentence for the failure to provide the necessaries of life.

The Crown and the respondent asked to stay any custodial sentence that may be imposed to allow the offender to discharge her parental obligations to her four-year-old daughter. The offender has shown no signs that she is a danger to this child or the community. The offender’s daughter would most likely be placed in foster care if the offender was incarcerated. Foster care, would be a poor second choice in these circumstances and would jeopardize the future welfare of yet another of the offender’s children. Had only the respondent’s counsel made this request, the Court most likely would not have granted it, as the Court would be extremely reluctant to dilute, in any way, the message that those who imperil the physical and mental welfare of their offspring are guilty of a grievous breach of trust and merit a term of imprisonment. The youngster’s grandmother has adopted the young boy and assumed the duties and responsibilities of parenthood late in life.

R v CP, 2020 MBPC 45

Posted on November 20, 2020 by thp151

The Court sentenced an Indigenous youth to a three-year period of supervised probation with community work, strict conditions, and directive rehabilitative measures for robbery, carrying a concealed weapon, theft, and failure to comply with a curfew imposed upon release on previous charges. His moral blameworthiness was attenuated by a constellation of mitigating factors, including impacts from FASD, ADHD, and Gladue circumstances. A jail sentence would not be meaningful for this youth. At best it would engender cynicism and hopelessness, at worst it would reconnect him with the negative influences that led to the offences and he would be released more of a danger to the community.

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An Indigenous youth, C.P., pleaded guilty to robbery, carrying a concealed weapon, theft, and failure to comply with a curfew which was a condition of his release on previous charges. He was 17 years old when he committed the offences. The robbery and weapon offence involved an armed robbery of a convenience store by pointing an imitation handgun at the owner.

C.P. has suffered many of the sequelae of colonialism and residential schools in his family. He has a history of mental health problems, including bipolar disorder, a history of substance abuse, a low I.Q., and diagnoses of Fetal Alcohol Spectrum Disorder (FASD) and Attention Deficit Hyperactivity Disorder (ADHD). At the time of the sentencing hearing, there had not been a single breach of his conditions.

The maximum adult sentence for robbery is life in prison. The maximum youth sentence is three years. A deferred custody order is not available, because of the psychological harm caused to the victim, Mr. Kwon, as outlined in the Victim Impact Statement (VIS) (R v VJT et al, 2007 MBCA 45). Pointing a firearm, even an imitation firearm, at a lone worker in a convenience store is a serious offence which has been the subject of considerable jurisprudence that recognizes the particular vulnerability of such victims.

C.P.’s extensive pre-sentence report and forensic report describe that he is an Indigenous person, now 18 years old, from Lake Manitoba First Nation who grew up without a biological father and a mother who suffered from substance abuse and was physically violent towards him. He remembers a lot of alcohol, pills, cocaine and violence as a very young child. When he was nine years old, his mother tragically died in a motor vehicle accident. Due to behavioural difficulties, C.P. was placed in foster care and then the Knowles Centre where he attempted suicide. He suffered physical and sexual abuse by family members. Between 2016 and 2019, C.P. was in 29 placements. He was using methamphetamine daily for the three months before these offences, committing thefts to get money to buy more methamphetamine. C.P.’s education has been limited. There is a direct link between the disruption in his home life and the commencement of his offending behavior.

The principles and objectives of sentencing for young people are very different from adults. Section 50 of the YCJA explicitly states that section 718 of the Criminal Code does not apply to youth sentencing. Read in its totality, the YCJA emphasizes the use of non-custodial sentences rather than custody to hold young people accountable. Although treatment and rehabilitative services are usually available in custody, the negative influences of other youths with a history of offending and the fact that the youth’s problems cannot be addressed in their own environment result in it being more difficult to rehabilitate youths in custody than in community-based treatment and therapy. This is even more so during COVID-19.

A sentence that promotes deterrence but does not promote the rehabilitation of the young person would not be in accordance with the purpose of sentencing under the YCJA. In considering his circumstances as an Indigenous young person, C.P. has experienced in his young life and that of his ancestors every feature of post-colonial life. The provision in the YCJA that requires proceedings to occur in a timely fashion are in recognition of the fact that reduced moral culpability and development in young people mean that for consequences to be meaningful, they have to be close in time to the offending behavior. That is more so when the young person suffers from one or more diagnoses that affect their working memory, as is the case for C.P.

Sending him into a jail after being in the community on strict conditions for a year is not a meaningful sentence. At best, it could engender cynicism and hopelessness in the young person. At worst, housing him in a jail would reconnect him with the negative influences that caused these offences and he would be released more of a danger to the community. He is now 18 years of age. At some point during his custodial sentence, corrections officials could bring an application to have him transferred to an adult facility. Indeed, he recently spent two days in an adult jail.

C.P.’s prospects for rehabilitation are good. It will be a long path, but he has shown remorse and insight into his offences. He has consented to remain in care, acknowledging that with the support of the agency, he is better equipped to stay on a positive path. He is finally in a placement that is suitable to his needs, outside of the troubled places and people in Winnipeg that allowed and supported his criminal behavior. He has a Level 5 placement in a foster home, and all the resources. There is 24-hour staffed supervision and care in the home. He is enrolled in school. A non-custodial sentence and community work with strict conditions and directive rehabilitative measures properly balances the seriousness of the offence with C.P.’s degree of responsibility in committing it.

R v Lerat, 2020 SKPC 30

Posted on November 19, 2020 by thp151

The Court sentenced Mr. Lerat to four years imprisonment for unlawful confinement and aggravated assault. His moral blameworthiness was impacted by a number of Gladue factors, but a penitentiary term of imprisonment was nevertheless warranted. A careful and merciful balancing of the constellation of relevant sentencing principles and factors in this case favoured a custodial disposition at the low end of the range.

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Wade Morris Lerat entered a guilty plea to aggravated assault contrary to section 268(1) of the Criminal Code and unlawful confinement contrary to section 279(2) of the Criminal Code. With accomplices, Mr. Lerat drove to a residence, where he attacked his uncle, Kevin Gambler, and severely beat him. Mr. Gambler was then loaded into Mr. Lerat’s vehicle, where they drove towards the “Gambler Graveyard” on Muscowpetung First Nation, approximately two miles from the residence. There is nothing else in that area. Mr. Gambler was then told he was going to be killed and buried in the graveyard. Mr. Gambler feared for his life and tried escaping the vehicle multiple times, only to be caught, restrained and further beaten, eventually with a metal bar. Mr. Gambler was then abandoned in the vehicle when it became stuck in mud. Mr. Gambler remained in the vehicle for an hour before walking to a residence to seek help.

A modified sentencing hearing was held for Mr. Lerat in Fort Qu’Appelle. The sentencing hearing included statements from members of the community that spoke to Mr. Lerat and how he has conducted himself since being placed on electronic monitoring. No recommendations were given, thereby determination of a fit sentence falls to the discretion of the sentencing judge. Mr. Lerat is a member of the Muscowpetung First Nation and descends from the Saulteaux people. Given that Mr. Lerat is an Indigenous offender, section 718.2(e) of the Criminal Code must be taken into consideration in determining a fit sentence for him (R v Ipeelee, 2012 SCC 13, 280 CCC (3d) 265).

Mr. Lerat comes from a family upbringing marred with alcohol use and poverty. He has experienced racism and disconnection. Around the age of 16, Mr. Lerat began struggling with drug and alcohol use. He is 36 years old and lives with his wife and nine children. He works for the Muscowpetung First Nation, assisting the Elders. Before the incident, Mr. Lerat was heavily involved with his community, organizing sports teams and tournaments, including hockey and fastball. Since the incident, Mr. Lerat has chosen to embrace his Indigenous heritage and has become more involved through practices such as smudging. He also continues to practice his Christian faith with the help of his Pastor, who is also an Aboriginal Protector. Since being on release, Mr. Lerat has taken treatment at Leading Thunderbird Lodge and with the National Alcohol and Drug Abuse Program worker on Muscowpetung First Nation. He has been sober for the past four years since the incident.

Mr. Lerat has six previous convictions on his criminal record which date back to 2008. However, Mr. Lerat does not have any violent offences on his record, and he has not been incarcerated. While Mr. Lerat may suffer from FASD, there is nothing in the record or evidence that suggested Mr. Lerat was not fully responsible for his actions or that his ability to appreciate or understand his actions was compromised in any way by intellectual or cognitive impairment. This attack happened between family members, many of whom likely are affected by the same systemic issues that affect Mr. Lerat. This is a community where alcohol abuse is the norm and there is a history of intergenerational trauma as a result of residential schools and colonialism. However, the gravity of the offences is serious and Mr. Lerat’s moral culpability remains high. He was highly involved and his actions directly led to a night of physical violence and psychological terror for Mr. Gambler.

These offences carry significant gravity and so the primary sentencing objectives must be denunciation, deterrence and the protection and safety of the public. Aggravated assault is a serious offence, as evidenced by the fact that it carries a maximum term of fourteen years imprisonment. Unlawful confinement is also not to be taken lightly, carrying a maximum term of ten years imprisonment. But it is the combination of the two that raises the gravity (R v Peyachew, 2016 SKCA 21).

Mr. Lerat’s post-offence conduct has demonstrated that he is receptive to rehabilitation and so an appropriate sentence must find a way to give life to that principle through restorative justice. While Mr. Lerat has a number of Gladue factors that impact his degree of responsibility, as a practical reality, the more violent and serious the offence, the more likely it is that the terms of imprisonment for Indigenous and non-Indigenous offenders will be closer to each other or the same, even taking into account their different concepts of sentencing (R v Jensen, (2005) 74 OR (3d) 561 (OCA)). Given the gravity of the offences and Mr. Lerat’s responsibility for them, a penitentiary term of imprisonment is warranted in this case.

R v Nicholson, 2020 NLSC 41

Posted on November 17, 2020 by thp151

After considering a Pre-Sentence Report and the offender’s Indigenous background, the Court imposed a sentence of six years incarceration for the combined offences committed.

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Rocky Jed Nicholson was sentenced for break and enter into a dwelling and committing an indictable offence therein, disguise with intent, aggravated assault and assault with a weapon. Following conviction, a date for sentencing was scheduled but later postponed to allow sufficient time for the completion of a Pre-Sentence Report with a Gladue perspective. The Court was tasked with deciding whether the sentences to be imposed should be served concurrently or consecutively, having regard to whether or not any of the offences relate to a single criminal venture. The overall global sentence is six years imprisonment to be served concurrently.

Section 718.1 of the Criminal Code provides that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court looked to the Supreme Court of Canada’s consideration of the circumstances of Aboriginal offenders in R v Gladue, (1999), 1SCR 688 [“Gladue”]. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from a pre-sentence report (Gladue). In the offender’s case, he was noted to have had a “horrendous upbringing” marred by his Cree father’s substance abuse issues, violence, and criminal lifestyle. At a young age, his father was a heroin dealer who often tested his drugs on Mr. Nicholson, which resulted in him becoming addicted to the drug. When the offender was 18-years-old, he shot and killed his father in self-defence. Afterwards, he assumed a role in his father’s drug business and actively used heroin.

The Pre-Sentencing Report indicated that he commenced counselling during prior incarceration, was prescribed Methadone and no longer uses drugs. Since moving to Newfoundland and Labrador, he has been living a productive life with his family. The offender claimed to be fluent in the Carrier language and has incorporated native cultural traditions into his daily family and community life.

Crown counsel noted that the offender entered the home with a baseball bat, thereby increasing the odds that the consequences of his actions would be fatal. The Court found that the offender was reckless as to whether the dwelling house was occupied and used violence causing an injury, which is an aggravating factor. The Court considered the offender’s strides towards rehabilitation, but the fact remained that he was before a court having committed a significant, violent offence, fifteen or sixteen years after getting out of prison and with strong family support. There was no true expression of remorse for the harm done to the victims. The Court found a predominance of aggravating circumstances: 1) the dated but serious criminal record; 2) the planned and pre-meditated nature of the home invasion in which the occupants were present; and 3) the use of weapons and force that actually caused injuries and had the potential to inflict life-threatening injuries. Sentences for break and enter and assaults committed in the course thereof were ordered to be served concurrently in all cases presented to the Court. All sentences were ordered to be served concurrently.

R v Hilbach, 2020 ABCA 332

Posted on October 2, 2020 by thp151

The Court of Appeal upheld a finding that the mandatory five-year prison sentence for robbery while using a prohibited firearm breaches s 12 of the Charter as cruel and unusual punishment. It fails to allow courts to account for mitigating factors and elevates principles of deterrence and denunciation to an extent that objectives of rehabilitation, the imposition of a just sentence, and special considerations for Indigenous offenders are lost. However, a sentence was varied based on errors, including an overemphasis of Gladue/Ipeelee factors.

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Ocean Hilbach was convicted for committing a robbery while using a prohibited firearm, contrary to s 344(1)(a)(i) of the Criminal Code. Curtis Zwozdesky was convicted for using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1) of the Criminal Code.

The mandatory minimum sentences were deemed grossly disproportionate to the fit and proper sentence to the appropriate sentence in other reasonably foreseeable applications of the law in both cases. As such, the mandatory minimums in those sections contravened s 12 of the Charter and were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982, were declared unconstitutional and of no force and effect.

The Crown appealed both sentences, maintaining that the mandatory minimums set out in these Criminal Code sections are consistent with the provisions of the Charter, and the sentences imposed by the sentencing judges are unfit. The standard of review on a sentence appeal is highly deferential. An appellate court cannot modify a sentence “simply because it feels that a different order ought to have been made” (R v Lacasse, 2015 SCC 64).

The constitutional validity of legislation is a question of law subject to the standard of review of correctness (Housen v Nikolaisen, 2002 SCC 33; R v Malmo-Levine, 2003 SCC 74). Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment (R v Smith, 1073 (SCR)). To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable” (R v Ferguson, 2008 SCC 6).

The appeal with respect to Mr. Zwozdesky is dismissed. The Court determines that the sentences imposed on Mr. Zwozdesky were fit and proper. The appeal with respect to Mr. Hilbach, however, is allowed in part. The sentencing judge for Mr. Hilbach found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, his degree of responsibility, the need for denunciation and deterrence for the crimes committed while on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence.

There is no doubt that the commission of robbery using a prohibited firearm is a serious violent offence with potentially grave consequences. There are aggravating factors of an already serious violent offence and Mr Hilbach’s moral culpability was high. However, he was young at the time, 19 years old, pleaded guilty to these offences, and expressed remorse for his crimes. He is a member of the Ermineskin Cree Nation, and there are significant Gladue factors to be considered.

The Court determined that the sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors and place sufficient weight on deterrence and denunciation, and overemphasizing Gladue/Ipeelee factors. The sentence of two years less a day is unreasonable and demonstrably unfit. Taking all of these factors into account, a fit and proper sentence for Mr Hilbach is three years’ imprisonment for the s 344(1)(a)(i) offence. However, given that a significant period of time has elapsed since Mr. Hilbach was sentenced and he has served his full original sentence, it is not in the interests of justice to re-incarcerate him at this time. The Court confirms the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.

R c Awashish, 2020 QCCQ 3614

Posted on September 25, 2020 by thp151

The Court rejected a joint submission on sentence of 34.7 months of imprisonment for aggravated assault, theft, and various administration of justice offences. The sentence was found to be excessive and likely to bring the administration of justice into disrepute as it failed to comply with the Gladue principles and perpetuated Indigenous over-incarceration, both individually and as a precedent.

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An Indigenous accused, a member of the Cree First Nation and the Mistissini community, pleaded guilty to charges of aggravated assault against his sister, theft, a breach of probation related to failing to perform community work, and two breaches of recognizance, that is, consuming alcohol and failing to observe a curfew.

The Court ordered a presentence report and a Gladue report, but it was not prepared due circumstances surrounding the pandemic. The presentence report in this case states that the accused has very bad memories of his childhood. His parents consumed alcohol repeatedly and there was violence almost every day, which was experienced by the accused. As he grew older, he used drugs and alcohol heavily. He attempted suicide and has been heavily medicated to treat his depressive episodes and panic attacks.

The accused remains fragile psychologically. If he returns to the community without first working on his vulnerabilities, the risk of relapse is significant. Several traumas related to his childhood remain unresolved to this day. However, he is able to work well when he is in a safe environment. The accused acknowledges that he needs help and that he is not able to resolve his problems on his own. He is willing to go to therapy at the Waseskun Center, a healing center.

During submissions on sentencing, counsels proposed a sentence totaling 34.7 months of imprisonment, less presentence custody, leaving a residual sentence of two years, as well as 24 months’ supervised probation. Counsels took steps to verify whether the accused could take part in therapy at the Waseskun Center. The Court, however, informed the parties that it questioned compliance with the public interest test established in R v Anthony-Cook, [2016] 2 SCR 204 [“Anthony-Cook”] and asked them to make additional submissions on the reasons and circumstances underlying the joint submission.

A trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (Anthony-Cook). This Court is of the view that the rejection of the joint submission in this case meets this high threshold. This joint submission for an Aboriginal offender viewed by reasonable and informed persons would be seen as representing a breakdown in the proper functioning of the justice system (R v LaForge, 2020 BCSC 1269).

The sentence proposed in this case is not only excessive, but also likely to bring the administration of justice into disrepute and contrary to the public interest because it does not comply with the obligations set out in s. 718.2(e) of the Criminal Code and Gladue factors (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13; R c Diabo, 2018 QCCA 1631; and Denis-Damée c R, 2018 QCCA 1251). Specifically, it does not take into account the accused’s actual moral blameworthiness and fails to consider the other reasonable sanctions available. Because both counsel are experienced and that ratifying their submission would carry weight, it would set a precedent from which the Court finds it important to depart.

Recently, the Court of Appeal for Ontario emphasized the importance of conditional sentences as other available sanctions under s. 718.2(e) with respect to Aboriginal offenders (R v Sharma, 2020 ONCA 478). The Court determined a more appropriate sentence, and along with a conditional sentence order and probation order, there is included the condition that the accused complete six months of therapy at the Waseskun Center to heal his inner wounds, his violence issues, and his alcohol and drug abuse problems.

R v Penunsi, 2020 NLSC 101

Posted on September 18, 2020 by thp151

Appeal dismissed. Newfoundland’s failure to enact the option of curative discharges does not result in a breach of the Constitution.

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The Appellant, an Innu woman who resides in the community of Sheshatsiu, Newfoundland and Labrador, was convicted of driving while her blood alcohol was in excess of the legal limit. The conviction was her third for such an offence. Notwithstanding that she faced mandatory imprisonment, she advised the sentencing court that she wished to seek a curative discharge. The option was not available in Newfoundland and Labrador.

The Appellant challenged the constitutionality of legislation affording the Provinces the discretion whether to enact the curative discharge provision in the Criminal Code. She asserted that the failure to be able to take advantage of a curative discharge disadvantaged her as an Aboriginal offender. The sentencing judge dismissed her application and the Appellant was sentenced to the mandatory minimum of 120 days imprisonment.

The Appellant has now appealed arguing that the sentencing judge erred in dismissing the application. Her application seeks to have the Court find that the legislation that affords the provinces the discretion whether to enact the curative provision, s 209(2)1 of the Criminal Law Amendment Act [“CLA”] violates her rights to equal treatment under s 15 of the Canadian Charter of Rights and Freedoms [“Charter”], in that it permits the Province to decline enacting the curative sentencing section. As an Aboriginal offender, she submits she is entitled to a restorative approach to sentencing, relying on s. 718.2(e) of the Criminal Code and the interpretation that section has received (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

At the hearing of the appeal in this Court, the Appellant was afforded the opportunity to present her argument not solely as to how the sentencing judge erred in the manner in which the application was heard, but also as to why section 209(2) was unconstitutional.

The Applicant relied on the reasoning in R v Daybutch, 2015 ONCJ 302 for support that her rights under s 15 were violated. The Court, however, does not find the reasoning in R v Daybutch persuasive as it fails to consider the legitimate differences in treatment of persons under the criminal law as part of the administration of criminal law in a federal system. In contrast, a recent and thorough examination of the same issue was conducted in R v Sabbatis, 2020 ONCJ 242. Like the Applicant in this matter, and the accused in R v Daybutch, the accused in R v Sabbatis is Aboriginal. In assessing whether the accused’s rights under s 15 were violated, the court declined to follow the reasoning in R v Daybutch, but instead came to the opposite conclusion. There is no basis to find that the discretion of the Province, as permitted by s 209(2) of the CLA, namely whether to enact the curative provision under the Criminal Code, violates the Appellant’s right to not be discriminated against under s 15, on the basis of her being an Aboriginal person.

The Court determined there was no error committed by the sentencing judge reasoning in dismissing the application and holding that s 209(2) of the CLA does not discriminate against the Applicant under s 15 of theCharter. This appeal from sentence is dismissed. The stay of the Appellant’s sentence is set aside, and the Appellant is to surrender herself into custody at the police detachment nearest to her current place of residence.

R v Laforge, 2020 BCSC 1269

Posted on September 11, 2020 by thp151

The Court rejected a joint sentencing proposal of 27 months in prison followed by probation for arson related to the burning of a vehicle and a convenience store. Counsel failed to meaningfully consider the Gladue principles and the sentence itself would contribute to systemic discrimination against Indigenous people rather than amelioration. A sentence of time served in custody was imposed instead, which will now be followed by a probation order.

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Mr. Laforge drove his vehicle into the front window of a 7-Eleven convenience store in Salmon Arm, British Columbia. He then exited his vehicle and poured gasoline into the cab. After everyone left the store, Mr. Laforge then lit his vehicle on fire. The fire spread quickly, causing extensive damage.

Mr. Laforge had been in custody for 548 days by the date of his sentencing hearing. Both counsel gave a joint proposal for a 27-month custodial sentence plus three years of probation. Mr. Laforge has Métis heritage and has been diagnosed with a schizophrenic illness. He did not want to hurt anyone or burn the 7-Eleven down, but to bring attention to his struggles, in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies.

The Court had the benefit of two well prepared reports, namely a pre-sentence report (“PSR”) prepared by a community corrections officer and a forensic psychiatric report, however, a Gladue report was not submitted. Mr. Laforge suffered abuse as a child and bullying in highschool for his Indigenous appearance. He used drugs extensively and eventually dropped out of school. He has only recently learned of his Métis ancestry, as his father was impacted by the “Sixties Scoop”. He has limited work experience and has a history of mental health problems, posing a moderate to high risk to reoffend without assistance from treatment and supports.

Restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.

Arson is a serious offence. For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest (R v KH, (1994) 146 NBR (2d) 372 (CA)).

Given Mr. Laforge’s Indigenous heritage, mental health issues and highly reduced level of moral blameworthiness, the joint submission seems overly harsh, in that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R v Anthony-Cook, 2016 SCC 43).