Tag Archives: Gladue

R c Charlish, 2020 QCCQ 2438

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In keeping with the sentencing principles, including a focus on Gladue factors, the Aboriginal accused has been granted a last chance of a total sentence of 90 days to be served intermittently and supervised probation that includes an essential focus on therapy.

Indigenous Law Centre – CaseWatch Blog

The accused is an Aboriginal person who is a member of the Mashteuiatsh Innu Nation. Paragraph 718.2(e) of the Criminal Code provides that the court must take into consideration all available sanctions, other than imprisonment with particular attention to the circumstances of Aboriginal offenders.

In 2018, the accused entered a guilty plea to a charge of trafficking cocaine. Presentence and Gladue reports (R v Gladue, [1999] 2 CNLR 252) were ordered. Despite the presence of aggravating factors, such as objective gravity and the scourge of drugs in the community, the court accepted the defence’s position and imposed an intermittent sentence of 60 days with two years’ probation, including 18 months with supervision, and 100 hours of community work.

The accused continued to use cannabis but reduced the quantity and for a time stayed away consumption. During submissions on sentencing in this matter, the Court granted the application of counsel to file the presentence and Gladue reports that were previously prepared because they remained relevant. The reports highlighted that since childhood, the accused has been exposed to instability, violence, and substance use. He is aware of the problem and has consulted an addiction counselor, but has not managed to remain abstinent. The accused has a spouse with substance abuse issues as well, with whom he lives with, along with their two young children in the Mashteuiatsh community.

The Court asked for information on the programs available in the community. There are no justice committees in Mashteuiatsh. The Court refers to the work of the “Viens Commission”, a Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec that focus on listening, reconciliation and progress. The Viens Commission describes the roles and responsibilities of justice committees as varying with each community’s needs and priorities. In general, it can be said that their goal is to offer an alternative to or complement the structures of the existing justice system. They take care of a number of things, including diversion, sentencing recommendations, supervised probation, suspended sentences, conditional release, authorized leave, crime prevention and community support such as healing circles, offender reintegration and citizen mediation.

However, there are other resources available in Mashteuiatsh to all types of clients. There is a housing resource that is a community organization that some members of the Mashteuiatsh community attend. It helps those suffering from issues related to substance abuse or addiction. With respect to Aboriginal clients, there is the Centre Kapatakan Gilles-Jourdain in Mani-Utenam, near Sept-Îles. It is an organization accredited by the Ministère de la Sécurité publique whose mission is to provide services adapted to Aboriginal values and traditions to Innu adults and other First Nations members, with the objective of healing and rehabilitation. There is also the Wapan rehabilitation centre in La Tuque. It provides treatment and follow-up services to First Nations adults. Mashteuiatsh social services can also provide support and direct a person to the appropriate resources, to the extent that they are willing and participate in the follow-up required.

In this case, the accused has been noted as open and cooperative. Before his relapse, he had made sincere efforts to change. The accused decided to testify and was transparent and described his drug addiction. He now realizes that he must get to the root of the problem and that long-term therapy is needed even if that causes him to be away from his family. He realizes that he is reproducing for his children the conditions that has led to his own substance use.

Cocaine trafficking is an objectively serious offence, for which the offender is liable to imprisonment for life. What is more, this case concerns a subsequent occurrence of the same offence for which the accused was convicted a few months earlier, along with a breach of probation. However, the Court cannot ignore the unique systemic and background factors that are mitigating in nature in that they have played a part in the Aboriginal offender’s conduct. The Supreme Court of Canada urges sentencing judges to address the sources of the problem rather than reproducing the “revolving door cycle in the courts” (R v Gladue; R v Ipeelee, [2012] 2 CNLR 218).

The accused is granted a last chance with a total sentence of 90 days to be served intermittently and supervised probation including the essential focus on therapy. To prioritize that initiative and taking into consideration the accused’s family obligations, the Court will not add community work.

R v JP, 2020 SKCA 52: Case Commentary by Glen Luther and Hilary Peterson

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Indigenous Law Centre – CaseWatch Blog

On April 30, 2020 The Saskatchewan Court of Appeal released the judgement of R v JP,[1] in a case where the sentencing trial judge had failed to account for the proven mitigating factors (relating to the accused’s Indigenous background and to the accused’s Fetal Alcohol Spectrum Disorder [FASD]) in favour of “denunciation, deterrence and public protection”.[2] This appeal therefore considered the proper sentencing of an accused who suffers with FASD and whose personal circumstances require application of section 718.2(e) of the Criminal Code and the principles set out in R v Gladue.[3] In result, the Court of Appeal reduced the sentence for two robberies from the original sentence of seven years each, consecutive, to 5 years each, concurrent.[4]

The judgment of the Court of Appeal is highly significant with respect to, at least, the following four points:

  1. The recognition of proven FASD as reducing the “degree of responsibility of the offender”;
  2. The recognition that Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened” even where a penitentiary term is called for;
  3. The presence of the word “rehabilitation” in s 718 as a purpose of sentence should be given a wide definition to include management and supervision in the community in relation to FASD;and
  4. That it is not the role of the Gladue report writer to suggest a fit sentence, as such is the province of the sentencing Judge.

At trial the circumstances of JP’s life as they relate to Gladue considerations were provided in detail and a Gladue report was completed, which included detail about his mother’s use of alcohol and drugs while pregnant with him and that she did not know she was pregnant until the seventh month.[5] The Court of Appeal provided the following summary of the Trial Judge’s conclusions regarding FASD and Gladue considerations:

… The judge began his analysis of these matters by stating that he was “satisfied that there are systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province”. He described these as “largely intergenerational” and stated that “[i]t is likely that these systemic and background factors have a bearing on J.P.’s lifestyle and attitude” (at para 87). The judge also said he had “no doubt” as to the accuracy of the diagnosis of FASD, which he said was supported by assessments which were “thorough and complete, including recommendations for intervention” (at para 92)…[6]

It is a finding of fact that JP suffers from FASD and Gladue circumstances which have contributed to JP’s involvement with the criminal justice system. The Court of Appeal analyzed the sentencing principles considered by the Trial Judge and ultimately found that the “The judge did not otherwise determine or consider the extent to which J.P’s level of reduced culpability arising from his FASD and other Gladue consideration should weigh in determining a fit sentence.”[7] However, as quoted above in paragraph 87 of the trial decision, the Trial Judge recognized JP’s reduced moral culpability.[8]

The Court of Appeal’s judgment is authored by Leurer JA and concurred in by Justices Schwann and Kalmakoff. The judgment is like a breath of fresh air in a Province that has often been seen as resistant to confronting the Indigenous over-incarceration epidemic. In doing so, the Court of Appeal builds on the now four-year-old decision of Richards CJS for the Court in R v Chanalquay, 2015 SKCA 141, in attempting to breath real life into the Gladue principles. Those principles have continued to confuse and, in some sense, be resisted by lower court judges. JP, who the sentencing Judge, Elson J of the Saskatchewan Court of Queen’s Bench, convicted after a trial, had been found to have “encouraged and directed” his nephew to commit the two convenience store robberies, had also been introduced himself at a young age to criminality by his step-father. As such, it is easy to see the inter-generational nature of this Indigenous family’s offending.

The sentencing Judge had criticized defence counsel and the Gladue writer for a failure to address the “extent to which the identified systemic and background factors, may or may not, influence” the objectives of denunciation, deterrence and public protection.[9]Justice Leuer relying on R v Okimaw,[10] suggests that Elson J was wrongly seeking for the Gladue factors and the presence of FASD to have “impacted or influenced” the named objectives of sentencing. The Court of Appeal was also of the view that JP’s FASD, which damage occurred to JP’s brain when he was being carried by his then fifteen year old mother, (who was at the time living in a circumstance of “family dysfunction, substance and alcohol abuse and violence”) had a “direct connection” to other systemic and background (Gladue) factors. Indeed, the Court of Appeal found that JP’s FASD was an “intergenerational consequence of residential schools”.[11]

These findings then lead the Court to ask an important rhetorical question: “how can a person who received the different sort of education JP was given by his stepfather not be less morally culpable than someone who was raised in a stable environment uninfluenced by the mentorship of a criminal?”[12] The Court’s point is a good one. If we are looking for examples of reduced moral culpability we have it in JP, without even considering his FASD. To the Court of Appeal his reduced moral culpability is evident and when taken with his FASD the evidence points more directly to JP’s reduced moral culpability.

Before moving to how this should have affected the sentence given, the Court then moves to address FASD directly. A first for this Court, Leurer JA adopts a broader definition of rehabilitation than originally accepted by the sentencing Judge. The Court quotes from R v Friesen,[13] where the Manitoba Court of Appeal accepted that rehabilitation includes “finding a way to control and modify the behavior…”[14] in question. Therefore, finding that FASD is a “life-long” condition does not equate with it not being amenable to rehabilitation (or treatment).  Leuer JA says that “…when the risk of reoffending is reduced through structured support that control, modifies or manages behavior”[15] rehabilitation can be an important aim of a criminal sentence. This is a highly significant step and provides much scope for the use by the criminal courts of recent research into the management of those with FASD as showing pathways to effective rehabilitation. Can FASD researchers, including Dr. Jacquie Pie (and others), have been doing important work on this topic.[16] Indeed, when one stops to think about the issue it is clear that many conditions are in fact life-long and yet can be subjected to effective “treatment” that can lessen their adverse effects (including diabetes, for example).

Lastly, the Court of Appeal is very clear in their judgment in JP that when an offence requires a penitentiary sentence it remains significant to consider Gladue factors when arriving at the precise sentence that is to be imposed. The Court focuses on the principle of proportionality [in s.718.1] as requiring the sentencing judge to “put into the balance” the “impact …systemic and background factors have on an individual’s moral blameworthiness.”[17] Therefore, “A combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of consideration of the proportionality principle”[18] which “must be accounted for when determining a proportionate sentence.”[19] This, of course, is highly significant as one often gets the impression that sentencing judges are giving only lip service to Gladue principles. Leurer JA is clear that such factors must be “weighed when fixing a proportionate sentence”[20]. The Court is critical of the Crown’s argument that Gladue has less effect where the primary goal identified in the case law is deterrence as s718.2(e), (citing Gladue itself at para 44), “has a remedial purpose for all offenders… [with] a particular remedial role for aboriginal peoples.”[21] In a case involving FASD, the Judge must look for evidence as to whether the accused’s moral culpability is reduced by their FASD. Further, Gladue factors that reduce moral culpability remain in play when determining the ultimate sentence relying on R v Jensen [22]. In the end, the Court finds that the factors that reduce JP’s culpability were on the facts of the case “overwhelming” and “cannot be credibly denied”[23] and the Judge erred in principle by failing to account for those factors in setting the sentence.

It seems that courts continue to adapt their application of Gladue in order to fulfill the intended purpose of the Supreme Court of Canada’s interpretation of section 718.2(e) of the Criminal Code. Part of this picture is answered by this decision. It cannot be clearer: in Saskatchewan either proven FASD or significant Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened. JP is a disabled person whose life circumstances are a consequence of colonial trauma and learned criminality. He will spend the next five years in a federal penitentiary. How are those five years of separation from society going to assist in supporting him in ways that recognize both his disability and his strengths and thus his future risk? One of the foundational statements from the Supreme Court in Gladue is that prison and the justice system in general is not working for Indigenous peoples [24]. While the search for the right balance of the proportionality equation is necessary, it is also important to remember that it is only through the creation of alternatives to incarceration, through the creation of Indigenous justice programs and the continued and increased reliance on organizations such as the FASD Network, that will we really make significant change to the lives of people involved in criminality, while making our society safer. Until then Indigenous people are being sent to prisons that won’t rehabilitate them. What kind of a society do we want to live in? One in which says it is making us safer or one that is actually safe?

Read R v JP, 2020 SKCA 52 on CanLii

About the contributors: 

Glen Luther: “Professor Luther joined the faculty of the College of Law, University of Saskatchewan in 2003, having previously held teaching positions at Osgoode Hall Law School, Victoria University in Wellington, New Zealand, and the University of Calgary. He has extensive practice experience as a criminal lawyer, having practiced in Lloydminster (his hometown) from 1981-1984 and Calgary, Alberta from 1989-2003. He has argued cases throughout Alberta and Saskatchewan at all levels of courts including the Supreme Court of Canada. Currently his practice is limited to consulting with other counsel and assisting them in the presentation of cases before the courts.”

Hilary Peterson: “Sessional lecturer and lawyer, Ms. Peterson teaches at the College of Law, specifically the seminars Youth Criminal Justice and the Indigenous People and the Criminal Justice System.” 

Citations:

[1] 2020 SKCA 52 [JP].

[2] Ibid, para 89.

[3] [1999] 1 SCR 688, [Gladue].

[4] At trial the accused was sentenced on a number of offences for a total global sentence of 17 years, which was reduced, based on the totality principle, to 10 years. The Appellate Court dealt predominately with the issue of sentence for two robbery convictions. The original sentence for the two robberies was seven years’ imprisonment, running consecutively, although the Trial Judge reduced the overall sentence of 17 years he would have imposed to 10 years based on the totality principle, [para 86] The Appellate Court modified the sentence for the two robberies to five years to run concurrently; resulting in a global sentence of eight years less time served on remand, [para 3].

[5] JP, supra note 1, see paras 9-15.

[6] Ibid, at para 21. [emphasis added]

[7]  Ibid, at para 38.

[8] Ibid at para 46.

[9] Ibid at para 89.

[10] 2016 ABCA 246, at para 76.

[11] JP, supra note 1, at para 45.

[12] Ibid, at para 47, [emphasis in original].

[13] 2016 MBCA 50.

[14] JP, supra note 1, at para 58.

[15] Ibid, at para 61.

[16] See for example: Pei J et al, “Interventions for Fetal Alcohol Spectrum Disorder: Meeting Needs Across the Lifespan” (2016) 3 Int. J. Neurorehabilitation 1 and www.canfasd.ca.

[17] JP, supra note 1, at para 63.

[18] Ibid, at para 65.

[19] Ibid, at para 66.

[20] Ibid, at para 66.

[21] Ibid, at para 67.

[22] 74 OR (3d) 561 (2005) (CA).

[23] JP, supra note 1, at para 73.

[24] Gladue, supra note 3, at paras 64 and 65.

R v Sabattis, 2020 ONCJ 242

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Application dismissed. The applicant, a young Indigenous first offender, has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either herself or for other persons in reasonably foreseeable cases.

Indigenous Law Centre – CaseWatch Blog

A young Indigenous first offender was found guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s 253(1)(a) and s 253(1)(b) of the Criminal Code.

In this matter, the applicant submits that a curative discharge is most appropriate, but this remedy is not available because the Criminal Law Amendment Act allows Ontario to decline to proclaim the Criminal Code provision for a curative discharge into force. As a mandatory minimum sentence for a first offence, the applicant must pay a $1000 fine, and receive a one-year driving prohibition. The applicant alleges that the Criminal Law Amendment Act, violates the applicant’s s 15 Charter rights by allowing the provinces to opt out of the curative discharge provisions. This disregards Gladue principles, causing “differential treatment” of Aboriginal offenders and other members of society in the sentencing process. As well, she submits that the mandatory minimum sentence subjects the applicant to cruel and unusual punishment contrary to s 12 of the Charter. In respect of both alleged breaches, the applicant submits that the provisions are not saved by s 1 of the Charter and therefore seeks the imposition of a curative discharge as a remedy.

The Court finds that the applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s 12 of the Charter. Given the finding that there is no violation of s 12 or s 15 of the Charter, the Court is bound by the mandatory minimum sentence. Using the relevant sentencing principles including Gladue principles, and having regard to the circumstances of the offence and of the offender, it is the Court’s view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that the offender attend counselling as directed by her probation officer related to her consumption of alcohol and other counselling as directed.

The fine and prohibition imposed is greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s 255.1, which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling, recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative Gladue principles. The Court is satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. This sentence is still at the lowest end of the range of what is appropriate given the aggravating features of the offence, but also reflects the significant mitigating personal circumstances of the offender.

R v JP, 2020 SKCA 52

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Leave to appeal granted and appeal allowed from sentence. Pursuant to s 687(1)(a) of the Criminal Code, the sentence of an Indigenous offender for two robberies is varied. It is ordered he serve concurrent sentences of five years in relation to each of these two crimes, with a global sentence of eight years less credit for time spent on remand.

Indigenous Law Centre – CaseWatch Blog

This appeal concerns the proper sentencing of an accused who suffers from Fetal Alcohol Spectrum Disorder [“FASD”] and whose personal circumstances called for application of the principles set out in R v Gladue,  [1999] 2 CNLR 252 [“Gladue”]. The offender, who is of Indigenous ancestry, was convicted of being a party to two armed robberies. He also pleaded guilty to several other offences. For all of these crimes, he was sentenced to 17 years’ imprisonment, which was reduced by the sentencing judge to a global sentence of ten years less credit for time spent on remand.

The offender had an extensive criminal record with over 70 convictions that pre-dated these matters. A Gladue report was prepared that recounted the history of his family and community. The extreme poverty, minimal educational opportunities, and overcrowded and deficient housing experienced by the offender’s parents cannot be captured in a few words, but the outcome was a life of family dysfunction, substance and alcohol abuse, and violence.

The offender’s grounds of appeal must be examined in light of the applicable standard of review. He took the position in this Court, that the judge committed several errors in principle and, in any event, that the global sentence is demonstrably unfit.

The factors indicated the offender has reduced moral blameworthiness. These factors were overwhelming and their connection to the offences cannot be credibly denied. This is not a case where the connection between the “systemic and background factors that have contributed significantly to [the offender’s] circumstances, and to his appearances before the criminal courts of this province” is elusive. It is impossible not to see a direct connection between these factors and the specific crimes for which the offender was being sentenced. Cause and effect are not required, but the facts of this case come as close as most any situation could (R v Ipeelee, [2012] 2 CNLR 218). The Court determined the judge erred in principle by failing to account for the systemic and background factors (including FASD) that was earlier identified as having contributed significantly to the offender’s circumstances and his commission of these offences.

This Court cannot interfere with a sentence simply because a judge has committed an error in principle. It must also conclude that the error had an impact on sentence (R v Lacasse, 2015 SCC 64). In this matter, the impact of the judge’s error is evident from his treatment of the precedent he relied upon to identify a fit sentence. This Court has no hesitation in concluding that the failure to account for the offender’s reduced moral culpability had a decisive impact on the sentence the judge imposed in this case.

The judge determined that a fit sentence for each robbery was seven years’ imprisonment, running consecutively. In connection with a housebreaking offence, it was determined that a fit sentence to be two years’ imprisonment, consecutive to the sentences for the two robberies. It was determined that a fit sentence for the remaining crimes was 12 months, concurrent on all those offences, but consecutive to the robbery and housebreaking offences. All of this would result in a combined sentence of 17 years, which the judge reduced to a global sentence of 10 years’ imprisonment. This was achieved by directing that the robbery sentences be served concurrently, not consecutively.

Although this Court is to sentence afresh, the only point of criticism that can be offered to the judge’s sentencing decision is the failure to account for the offender’s reduced moral culpability when it came time to fix a sentence. Considering the guidance provided by the case law, and given the offender’s reduced moral culpability through the appropriate assessment of his FASD and other Gladue considerations, a fit sentence in this case should remain within the range identified in previous case law, but at its low end. A sentence of five years’ imprisonment on each robbery conviction will fall at the low end of the range (R v Kirklon, 2015 SKCA 67), properly denounce the offender’s unlawful conduct, and not separate him from society for longer than necessary. Expert evidence suggests that there are ways the public could be protected by managing the offender in the community once he has served his sentence.

R c Neeposh, 2020 QCCQ 1235

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After careful consideration of sentencing principles and Gladue factors, the mandatory minimum sentence of four years for discharging a firearm while being reckless as to the life or safety of another person, is declared unconstitutional and inoperative with respect to the accused.

Indigenous Law Centre – CaseWatch Blog

 The accused discharged a firearm while being reckless as to the life or safety of another person as he was walking in the streets of Mistissini, an Aboriginal community. The accused acknowledges the facts but challenges the constitutional validity of the mandatory minimum sentence of four years.

The accused had a difficult childhood, and was also at the time of the offences having personal difficulties with his ex-girlfriend. After a night of heavy drinking, the accused got a hold of a firearm and discharged several shots. The most serious charge is of having intentionally discharged a firearm while being reckless as to the life or safety of another person.

This Court took into consideration the proportionate sentence in comparison to the minimum mandatory punishment, along with other principles of sentencing, including Gladue factors of the accused. It declares that the minimum mandatory punishment of imprisonment for a term of four years provided under section 244.2(3)(b) of the Criminal Code is unconstitutional and inoperative with respect to the accused.

The accused is to serve a sentence of imprisonment for a term of 571 days of imprisonment with a probation order for two years beginning upon release of the accused from custody, under further ancillary conditions including writing a letter of apology to the victims.

 

R v Evic, 2020 NUCJ 7

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After weighing the sentencing principles with Gladue factors, the circumstances of the Indigenous offender after entering a guilty plea for aggravated assault resulted in an incarceration of 3 years, minus credit for pre-sentence custody. 

Indigenous Law Centre – CaseWatch Blog

The offender was convicted of aggravated assault pursuant to s 268(2) of the Criminal Code. The details of the offence are that the victim was at his friend’s home having drinks when the offender and his co-accused came over. An argument ensued with the victim before being physically attacked. The victim was punched and kicked until he was rendered unconscious. He did not fight back, and suffered bruising on the left arm and three serious lacerations to his scalp which required 16 staples to his head.

The offender is a 44-year-old Indigenous man who hunts and fishes for his family and donates some of his catch to elders. The offender is a carver for a living. He did not attend Residential School, and he was unsure if his biological mother did either. While the offender lives in a dry community, he reported extensive use of both drugs and alcohol. He has two children who live with their mother, and he provides financial support to them when he has the income. He has lost multiple family members to suicide. The offender has a record which includes offenses of possession of a weapon, assaults, theft, mischief, uttering threats, and failure to comply with an undertaking.

Following the sentencing principles of s 718 of the Criminal Code, the Court was required to ensure that the sentence was proportionate to the gravity of the offense and the degree of responsibility of the offender. The section also outlines other sentencing principles for the sentencing judge to consider in determining aggravating or mitigating circumstances which are supplemented by the analysis required by Gladue. The aggravating factors including the severity of the injuries to the victim, the fact that the attack was unprovoked, the offender’s serious criminal record for similar offenses, and his prior jail sentence. The mitigating factors included that the offender expressed remorse, his co-accused initiated the assault, he expressed a desire to change his ways and return to work, he has a support network and a close connection to the community. After considering these factors, the Court imposed a sentence of incarceration of 3 years minus credit for pre-sentence custody.

R v Komak, 2020 NUCJ 12

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Weighing the sentencing principles of deterrence and denunciation with Gladue and other mitigating factors, the Indigenous accused is sentenced to 3 and a half years minus pretrial custody with 3 years of probation, for the manslaughter death of a friend at a party.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused hosted a cribbage game at his home in Cambridge Bay. Some of those present, including the accused, smoked cannabis throughout the evening but none were drinking alcohol. The victim sent a text message to the accused that he was drunk and wanted to go to the accused’s house to drink with him. After coming over, the victim drank and tried throughout the evening to convince the accused to drink with him, who eventually succumbed.

At one point the victim became aggressive with the accused and throughout the night, arguing was witnessed. In the early hours of the morning, the victim was discovered dead from a stab wound, and the accused passed out with no recollection of the offense.

By his guilty plea, the accused admitted responsibility for the stab wound that killed his friend, and that he acted in the heat of passion caused by the accused’s sudden, provocative, intoxicated and aggressive behaviour. He admitted to using excessive force and in those circumstances he is guilty of manslaughter and expressed remorse.

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Consideration was also given of potential Gladue factors of the unique systemic or background factors on the accused to help shed light on his level of moral blameworthiness. The accused is 45 years old, a husband and a father of three. He suffered through a very difficult childhood, as his parents were alcoholics who often chose excessive drinking over the welfare and safety of their son. There were times when he had to actually sleep outside in the cold. His criminal record of committing property offences were in context with a lack of supervision and the inability to count on three meals a day and a warm bed to sleep in.

Although rehabilitation is always important, this is a case where the primary goal of sentencing is deterrence and denunciation. The accused is sentenced to three and a half years in jail minus pretrial custody to be followed by three years of probation, along with a number of mandatory orders imposed.

R v HO, 2020 ONCJ

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Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case. The offender was sentenced to a global jail sentence of 8 months, following a period of probation for 18 months.

Indigenous Law Centre – CaseWatch Blog

The offender was found guilty after trial of five sexual offences contrary to the Criminal Code. The sexual assault conviction was stayed when the parties made submissions on sentencing pursuant to the rule in R v Kienapple, [1975] 1 SCR 729. Defence counsel challenged the constitutionality of the remaining four conviction’s mandatory minimum sentences arguing a sentence involving a mandatory minimum would be grossly disproportionate and sought an order declaring their unconstitutionality under s12 of the Charter based on the offender’s learning disability.

The aggravating factors in this case included the fact the victim was 13 years of age. There were numerous offences including kissing, touching of her breast, request for sexual acts, sharing graphic sexual videos and the ultimate request for intercourse. The offender had a related youth record for engaging in similar conduct with a child victim. He knew right from the outset the victim was 13 years old. His acts could not be considered “grooming”, as they escalated in severity. A potential aggravating factor that was missing from the proceedings, was the impact on the victim as she chose not to provide a victim impact statement. His moral blameworthiness remained high based on his conscious decision to engage with a 13-year-old for two weeks and engaging in conduct after completing a program where he would have known about the moral boundaries of intimacy with partners.

The offender is an adult, but is still young and inexperienced. These are his first adult convictions. The offender had the full support of his family and community as evidenced by many letters of support. He had taken positive steps towards rehabilitation by addressing his learning disability, but the learning disability itself was not a mitigating factor. There are many collateral consequences for the offender. Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case.

Balancing the aggravating and mitigating factors, and having regard to an undue sentence having a disproportionate impact on the offender’s learning disability, a sentence of imprisonment of 8 months was warranted for the child luring offence. Having arrived at this conclusion, the Court did not have to consider a s12 Charter analysis of the 6-month mandatory minimum, as the sentence imposed was not grossly disproportionate in the circumstances of the offender and this case. Accordingly, the s12 Charter challenge as framed on this record was dismissed.

 

R v James, 2020 YKTC 7

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Although the Court did not have a Gladue Report, it recognized that the accused faced a history of abuse and neglect, often associated with systemic discrimination against Indigenous peoples. All other reasonable options to incarceration were considered in weighing the harm done to the victim and the community.

Indigenous Law Centre – CaseWatch Blog

The accused pled guilty to five offences contrary to ss 334(b), 430(4), 266, 267(b), and 129(a) of the Criminal Code. A Gladue Report and Pre-Sentence Report were ordered. However, the accused decided not to participate in the preparation of the two Reports, so neither Report was available. The author, who was to have prepared the Gladue Report, suggested to the Court that the accused’s declination to be interviewed was due to the childhood difficulties that he had endured. Such challenges included his father abandoning him when he was ten years old and his mother passing away within the same year. His family had their struggles and addictions, so he lacked support and was faced with low self-esteem. He made it to grade 8 but could not read or write. The accused expressed remorse for his actions, and he acknowledged that he needed help through counselling to learn to love himself.

Following the sentencing principles of s 718 of the Criminal Code, the Court analyzed the mitigating and aggravating factors surrounding the accused and his offences. The aggravating factors included his criminal record and his intimate relationship with the victim. The mitigating factors included his guilty pleas, acceptance of responsibility, and the positive and rehabilitative steps he had taken since the last offence was committed, including his compliance with his strict bail conditions. The Court did not have a Gladue Report. Still, the sentencing judge recognized that the accused faced a history of abuse and neglect, which is often associated with systemic discrimination against Indigenous peoples. Since the accused was an Indigenous offender, the Court was required to consider all other reasonable options to incarceration while weighing the harm done to the victim and the community.

The accused is the father of a young child, and he had been working with the mother of his child to create a secure and stable home environment. He was supported by the community, and he had the support to allow him to serve his sentence in the community. After analyzing these factors in combination with the accused’s potential risk of reoffending, the Court sentenced him to four months served conditionally in the community, a probation order of two months, and a recognition of his time served.

R v Awasis, 2020 BCCA 23

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Appeal dismissed. Public safety must be heavily weighed when sentencing a dangerous offender. Despite the consideration of Gladue factors of the Indigenous offender, his patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable.

Indigenous Law Centre – CaseWatch Blog

The offender was designated to be a dangerous offender and was sentenced to an indeterminate term of imprisonment after being convicted of two sexual offences. He is Indigenous and had an “unfortunate, tragic background.” He became involved with the criminal justice system when he was 13 years old, and he has continued to violently and sexually reoffended in the community. He has severe addictions to alcohol and drugs and has suffered from a lot of trauma, including sexual assault. The offender also has been diagnosed with a severe personality disorder which has contributed to the risk he poses to public safety.

Since the appellant was designated as a dangerous offender, indeterminate detention was available as a sentencing option under s 753(4) of the Criminal Code. To properly exercise discretion under that section, the Court must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level (R v Boutilier, 2017 SCC 64). To do so, the sentencing judge must conduct an individual assessment of all relevant circumstances and consider the sentencing objectives set out in ss 753(4), (4.1) and 718–718.2, including those developed for Indigenous offenders. An offender who is found to be a dangerous offender has the right to appeal his designation and sentence on any ground of law or fact or mixed law and fact as per s 759(1). The offender applied to submit fresh evidence on appeal, but it was denied due to the credibility and lack of perceived effect on the outcome.

The offender argued that the trial judge failed to take into account evidence of his treatability at the designation stage, which would constitute a reversible error. Consideration of treatability is relevant at both the designation and sentencing stage. When it came to the trial judge’s analysis at the designation stage, the Court found that treatability was not considered. Nonetheless, the offender’s patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable. At the sentencing stage, the trial judge found a lack of evidence that the offender’s risk to the community could not be managed which was upheld by the appellant court.

The offender also argued that the trial judge failed to give a tangible effect to Gladue factors when determining his sentence, which resulted in a disproportionate sentence. The Court acknowledged that it is necessary to look at the whole picture (including Gladue considerations). Still, the sentencing lens for a dangerous offender is constrained as there is an emphasis on public safety which narrows the options available to a sentencing judge. The trial judge recognized that the offender’s Gladue factors reduced his moral blameworthiness; however, his repeated history of reoffending and failure to address the issues that contributed to his criminal conduct made the need to protect the public paramount. It was decided that the trial judge adequately considered the offender’s Gladue factors and overall, the indeterminant sentence that was imposed was acceptable to the Court.