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Misdzi Yikh v Canada, 2020 FC 1059

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The Court struck the pleadings filed by two Wet’suwet’en hereditary chiefs (Dini Ze’) in an action seeking various forms of relief against Canada in relation to federal policy objectives for the reduction of greenhouse gases. It was found to be plain and obvious that the action could not succeed due to insurmountable issues with respect to justiciability, causation, and a lack of specificity regarding alleged constitutional violations. 

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This Statement of Claim is struck without leave to amend, as it is not justiciable, discloses no reasonable cause of action and the remedies are not legally obtainable. The Plaintiff, Dini Ze’ Lho Imggin and Dini Ze’ Smogilhgim on behalf of two Wet’suwet’en House groups of the Likhts’amisyu (Fireweed) Clan: the Misdzi Yikh (Owl House) and Sa Yikh (Sun House), [“Dini Zi’”] put forth this claim related to climate change. The Dini Ze’s position is that Canada’s policy objectives for the reduction of greenhouse gas [“GHG”] emissions by 2030 are insufficient. As a result, they say Canada’s failure to enact stringent legislation is contrary to common law principles of “public trust”, “equitable waste”, and the “constitutional principle of intergenerational equity”.

The Dini Ze argued that there is a violation of their rights under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms [“Charter”] and that the Charter breaches are not justified under section 1. The Dini Ze’ allege that Canada has breached its duty under section 91 of the Constitution Act, 1867 by not ensuring low GHG emissions under the peace, order and good government [“POGG”] powers. By doing so, Canada is generally violating their constitutional rights by not adhering to international environmental agreements that Canada ratified. Wide ranging remedies are sought including declaratory, mandatory and supervisory orders to keep mean global warming to between 1.5 ̊C and 2 ̊C above pre-industrial level by reducing Canada’s GHG emissions. These reductions relate to Canada’s commitments made in the Paris Agreement.

The Paris Agreement is a multi-national agreement entered into by various nations in order to combat climate change and to work forward to sustain a low-carbon future. The agreement is a hybrid of both legally binding and non-binding provisions. Canada ratified the agreement on October 5, 2016 and the agreement entered into force on November 4, 2016. Canada is one of 189 countries to have ratified the agreement. The Dini Ze’ claim that Canada has repeatedly failed, and continues to fail, to fulfil its duty because they have not implemented the laws, policies, and actions needed to ensure that Canada meets its commitment made in the Paris Agreement to keep mean global warming below 2 ̊C above pre-industrial levels.

Justiciability must involve an action that has subject matter appropriate for a court to decide (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26). The POGG power of the federal government is a tool to facilitate federalism in Canada. It is generally thought of as having three branches: 1) the “gap” branch; 2) the “national concern” branch; and 3) the “emergency” branch (Peter Hogg, Constitutional Law of Canada, 5th ed supplemented (Toronto: Thomson Reuters Canada, 2019)). The POGG powers under section 91 empower the federal Parliament to enact laws in these situations. There is nothing in the law that suggests that it imposes a duty on the government, nor can it force Parliament to enact, change or repeal specific laws in the manner the Dini Ze’ suggests.

The “existence of an article in a treaty ratified by Canada does not automatically transform that article into a principle of fundamental justice” (Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 [Kazemi]). The only binding international law in a dualist legal system like Canada’s would be a treaty plus conventional law, or proof of applicable customary international law (Nevsun Resources Ltd v Araya, 2020 SCC 5; Kazemi ). Thereby, treaties, such as the Paris Agreement, are only given effect through Canada’s domestic lawmaking process through legislation.

There cannot be a positive duty imposed by international obligations on the peace, order and good government of Canada, as the POGG power has never been used in such a way, and the language of the statute provides that even this novel attempt must fail. When the Dini Ze’ are asking this Court to rule on the constitutionality of the failure to enact what they consider adequate laws to fulfil international obligations, they are really asking the Court to tell the legislature to enact particular laws. This is not the role of the Court and thus not justiciable. Enacting laws is within the jurisdiction of Parliament. If those laws violate the constitution, then there can be striking out, reading down, or reading in of provisions.

With no specific law pointed to, and the broad claims made by the Dini Ze’, it is difficult to find sufficient legal elements in the Charter claims for them to be justiciable. The reason being that there is no impugned law or action to make a comparison necessary to do an analysis under section 1 (R v Oakes, [1986] 1 SCR 103). Complexity itself does not mean that the Court cannot adjudicate an issue; but when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others. As well, the remedies sought to attempt to simplify a complex situation in a way that would be ineffective at actually addressing climate change given the polycentric and international nature of the problem.

The changes being asked for are more akin to a change in policy than a change in law. In Canada, any real effect on Canada’s GHG emissions will be dependent on the cooperation of the provincial governments. This Court does not have the statutory jurisdiction to mandate any such cooperation between the different levels of government meaning that any remedies would quite possibly be ineffective. This matter is not justiciable as it is the realm of the other two branches of government. This broad topic is beyond the reach of judicial interference. The issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government. The Court strikes the claim without leave to amend because of it being plain and obvious that there is no reasonable cause of action (Federal Courts Rules; R v Imperial Tobacco Canada Ltd, 2011 SCC 42).

R v Angnatuk, 2020 QCCS 3650

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The Court sentenced an Inuk man to life imprisonment and ordered him ineligible for parole for 18 years for the second-degree murder of his Inuk partner. His Gladue factors were considered in setting the period of ineligibility for parole but they were the only mitigating factor.

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Jimmy Angnatuk, was found guilty by jury of the second degree murder of Elisabeth Novalinga. By law, Mr. Angnatuk faces a mandatory sentence of life imprisonment. Access to the appropriate tools and programs to address his issues is paramount, and that Mr. Angnatuk will take steps towards rehabilitation. Domestic violence, in an Indigenous context or not, is a scourge on society. Mr. Angnatuk is to be sentenced to life imprisonment without eligibility for parole for 18 years.

Mr. Angnatuk and Ms. Novalinga lived in Kuujjuarapik and were in a relationship. On the day of her murder, both consumed alcohol and had an argument. Later that evening, the police received an emergency call. They arrived at the house shortly after, where the accused remained on the premises, and told the officers that he had killed Ms. Novalinga. She was found deceased with multiple blunt force injuries and knife wounds on her body.

Ms. Novalinga’s two children are now left without a mother. Mr. Angnatuk murdered Ms. Novalinga while he was bound by an undertaking, and he has a pending case of assault causing bodily harm. He has a history of abuse against his partners and has multiple prior convictions for violent offences against his partners but also against strangers. He is impulsive and extremely dangerous, has not shown a real possibility of rehabilitation, and has been in and out of prison without it being a deterrent.

Fixing an extended period of parole ineligibility is a very fact-sensitive process (R v Shropshire, [1995] 4 SCR 227). Sentencing is an individualized process. The sanction must be adapted to the nature of the offence and the situation of the offender (R v Nasogaluak, [2010] 1 SCR 206). The Court has to weigh the objectives listed in s 718 of the Criminal Code and against the facts and the relevant aggravating or mitigating factors, consider the ranges of sentences for similar circumstances, as well as the needs of the community in which the offence occurred.

Although the Court did not have a contemporary pre-sentence report that could help assess his risk of reoffending, Mr. Angnatuk has, by his own admission, serious anger and emotional issues that have been left largely unaddressed over the years. Mr. Angnatuk mentioned to his Gladue Report Writer that he is aware that he has a lot of anger inside, and that he understands that he needs help with his feelings and his anger in order not to reoffend. He shows an interest for programs or counselling sessions tailored to Inuit or that are culturally relevant and in his own language or that offer traditional activities.

Ms. Novalinga was, as Mr. Angnatuk is, Inuk, and suffered a horrible fate at the hands of her partner, who prevented her from getting help in extricating herself from a violent situation because he did not want to go to jail. The aggravating factors are numerous in the present case. The Court also has to take into account Gladue factors in determining Mr. Angnatuk’s sentence. The Court analyzed the factors documented in the Gladue Report that pertain to Mr. Angnatuk, his family, the community of Kuujjuaq, and the lasting impact of assimilation policies on Inuit People. However, were it not for these elements, the Court would have found no substantive mitigating factor in Mr. Angnatuk’s favour.

Okanagan Indian Band v Johnston, 2020 BCSC 1749

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The Court granted a one-year stay against the Band’s application for summary trial against a former member in relation to an interest in reserve land her late aunt bequeathed to her. The stay will give the defendant time to appeal the rejection of her membership application in another proceeding, although she will have other hurdles to surmount beyond membership before she can obtain a legal interest in the lot.

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The defendant, Marilyn Johnston, was a former member of the plaintiff, Okanagan Indian Band [“OKIB”] but is not a present member. Currently, she is a registered Indian of the Nak’azdli Whut’en Indian Band in Fort St. James, B.C. Ms. Johnston was bequeathed property on the reserve from her aunt who died in 2013. The plaintiff, the OKIB, is a band within the meaning of the Indian Act, and is the beneficiary of six reserves set aside for its use and benefit by the federal Crown pursuant to s 18 of the Indian Act. Okanagan Reserve No. 1 is one of the reserves set aside for the OKIB. Section 50 of the Indian Act prevents Ms. Johnston from inheriting her aunt’s property. The OKIB says that she must therefore vacate the property and Okanagan Reserve No. 1 [“Reserve”].

Ms. Johnston applied to transfer her membership back to the OKIB, and has been taking steps since then to reinstate her membership in the OKIB. She originally transferred her band membership from the OKIB in 1988 to enhance her credibility and trust with the community members she worked with in the victim services program. She had moved to that area in approximately 1976 and worked there in the social service sector. It was always the defendant’s intention to return from the Nak’azdli Whut’en Indian Band to the OKIB, as she has extensive ties to the Reserve.

When the defendant first contacted the OKIB in 2002 to transfer her membership, she was advised that the OKIB was in the process of adopting a new band membership transfer policy. OKIB said that it would process her application and she would be registered as a member. An internal band memo in 2012 stated that the defendant “has fulfilled all the requirements to apply for transfer to” the OKIB. It resolved that the defendant “has been accepted into the membership” of the OKIB, however, the transfer was not processed.

There is an issue between the parties as to whether the membership requirement in s 50 should be interpreted as being a member of the band at the date of the testator’s death, or whether it is retrospective and can be cured by membership granted after the date of death of the testator. The usual process under s 50(2) of the Indian Act where a beneficiary is unable to inherit the lands is for the lands to be sold to a band member and the proceeds of the sale provided to the beneficiary. Should the lands not sell, the lands would revert to the OKIB pursuant to s 50(3).

In 2019, the OKIB reconsidered the defendant’s application, but denied the defendant’s application for membership on the basis that she displayed aggressive and threatening behaviour to the OKIB staff and guests and that she would not make a positive contribution to the community. The defendant says she did not commit the behaviour or acts alleged and that there is no reasonable basis to deny her membership. The defendant appealed the OKIB Band Council decision to deny her membership with a formal application to the Protest Unit of ISC pursuant to the OKIB’s Band Membership Transfer Policy and s 14.2(1) of the Indian Act [“Protest”].

The Protest was sent by registered mail and accepted. The defendant has not yet received a reply. The basis for the Protest is that the decision to deny the transfer of membership to the OKIB was made without proper consultation and was significantly delayed. Subsequently, the plaintiff filed this Notice of Application. The defendant filed her application seeking a stay of proceedings to permit the membership process to complete, by way of appeal if necessary.

The Court has inherent jurisdiction to grant a temporary stay in a proceeding before it (Law and Equity Act, s 8(2); RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. There is a serious question to be determined (RJR-MacDonald). In the Court’s view, there is an intrinsic link between the membership application issue and the plaintiff’s claims against the defendant. In the event that she becomes a member, there will likely be the two hurdles identified by the plaintiff, the retrospectivity of the operation of s 50, and the permission of the Minister pursuant to s 49. Irreparable harm would be occasioned to Ms. Johnston if the stay was refused. The second branch of the test is met by the defendant (Dixon v Morgan, 2020 BCCA 200).

In considering the balance of convenience, it is important to note that the defendant first applied to OKIB for a transfer back of her membership in 2002. The decision denying the application was made in 2019. In the intervening time, Ms. Johnston returned to live with her aunt in 2009, and her aunt died in 2013. Internal band documents indicate that in 2012 there was no impediment to approving the membership application. There were many attempts made by Ms. Johnston to communicate with OKIB and further her application throughout the years from 2002 to 2019. The lack of certainty of the future of the Lots lies at the feet of OKIB as a result of their delays. The prejudice to the defendant is far greater than that to the OKIB (RJR-MacDonald). The stay is granted with the length of one year.

R v Head, 2020 ABPC 211

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The Court sentenced an Indigenous man to 245 days in prison (time served) followed by three years of probation for various offences including robbery of a convenience store. Counsel initially agreed to a joint submission on sentence for 30 months in prison but this position was abandoned once counsel investigated Gladue factors and the legal relevance of Fetal Alcohol Spectrum Disorder to moral blameworthiness.

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Simon Peter Head, a 26-year-old Aboriginal man pleaded guilty to 12 separate charges. A joint submission was presented of 30 months of jail, less 5 months time served, leaving 25 months left to be served in a federal institution where he had never been before. Gladue factors were read in superficially. The Crown’s position was that Mr. Head had an aggravating record with regard to breaches and failings to appear, as well as a history of assault and property offences.

In March 2017, a Gladue report was prepared. Mr. Head at the time of the report was almost 23 years of age. This report was prepared for 2 robbery charges that he was facing in 2017. Mr. Head dropped out of school, and in respect to Child Welfare system, he had been fostered. He had two different group homes between the ages of 12 and 16. Upon leaving, he did not have any means of employment and has not maintained any type of employment since then. When he was young, he started using alcohol. When he was 19, he then switched to crystal meth, which is his current addiction, and he struggles with now.

In 2017, he was hopeful to get out of his criminal life. He was interested in his Aboriginal heritage. He wanted to work with an Elder and learn how to make drums. He recognized that he needed help to manage, was remorseful for what he had done, particularly to the victims. He wanted to try and go back to do some schooling, particularly in computers. Although not formally diagnosed with FASD, he does have indicators. Although the Court found that Mr. Head’s moral culpability is at the lower end, it does not to detract from the fact that he caused harm to individuals.

The Court advised that counsel must understand that before bringing joint submissions before the court involving Aboriginal persons, they must do a careful analysis of the intersections of the Gladue factors related to this accused and what is a fit and proper sentence. Coming before a court and expecting a sentencing judge to rubberstamp a joint submission is not what Gladue says what the judge’s function is.

Although joint submissions are important to the administration of justice, they should not be accepted where the joint submission has failed to properly consider Gladue factors including FASD and other cultural circumstances. Judges should not be adding to the overrepresentation of Aboriginal persons in prisons where alternative approaches are available and which would meet the principles and objectives of sentencing. Counsel must be prepared to come to court with the proper information. This was not the case in the matter before this Court as demonstrated in its history.

R v Aklok, 2020 NUCJ 37

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The Court accepted a joint submission on sentence of 45 days of imprisonment followed by nine months of probation for two counts of assault by an Inuk man against his Inuk intimate partner. While the Court found the test for departure from a joint submission had not been met, it expressed concerns with counsel’s failure to justify this lenient sentence, particularly given the prevalence of intimate partner violence in Nunavut.

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Mr. Aklok is a 39-year-old Inuk from Kugluktuk. Mr. Aklok is a repeat offender with a criminal record that contains 13 entries between 2000 and 2012. Mr. Aklok was sentenced for assaulting his intimate partner according to the terms of a joint submission in which the Court found troubling. The joint recommendation was imposed because of the constraints from rejecting it (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]).

Cases of alcohol-fueled intimate partner violence against Inuit women and girls consistently dominate the Court dockets across the Territory. Far too often, the same intimate partners in crisis are involved in cases before the Court, as in this matter.

There are Gladue factors that need to be taken into account in the sentencing, and in this context, the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. Mr. Aklok experienced significant violence all through his childhood. His memories include as a young child watching his father beat up and choke his mother, leaving her bruised, swollen, and helpless on the floor. Mr. Aklok also experienced physical abuse from his father. He was often bullied and ostracised at school and has struggled to find housing and a full-time job and has spent time in homeless shelters.

The joint submission imposed by the Court was unduly lenient, and counsel failed to justify their leniency as the joint submission did nothing to help dispel the perception that the justice system devalues the lives of Inuit victims of crime. However, in Anthony-Cook, the Supreme Court of Canada established a “stringent” public interest test to guide front-line judges when they consider a “contentious” joint submission. Although troubled, the Court was bound to follow appellate direction, and impose the joint submission.

Inuit women, and all Nunavummiut, deserve a justice system that meaningfully addresses gendered violence. Earlier this year, gender-based intimate partner violence was addressed in a report released by Pauktuutit Inuit Women of Canada: “Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of women being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average. In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada” (Addressing Gendered Violence against Inuit Women: A review of police policies and practices in Inuit Nunangat, Pauktuutit Inuit Women of Canada and Dr. Elizabeth Comack, January 31, 2020). There is a need and a role for Parliament to reopen debate on this vitally important aspect of the criminal justice system.

R v Racette, 2020 BCPC 219

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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

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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 CP, 2020 MBPC 45

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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

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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 c Esau, 2020 QCCQ 5044

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The Court issued a suspended sentence and a three-year probation order for a 54-year-old Cree woman found guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. The Court took judicial notice of the increasingly disproportionate numbers of Indigenous women in Canadian prisons. It found the circumstances of Ms. Esau’s life to be harrowing, including recurring experiences of domestic violence, forced marriage to a sexually, physically, and psychologically abusive husband in her Pentecostal community, and periods of homelessness. The Gladue report and the Pre-Sentence Report highlighted the need for participation in treatment and healing programs. 

Indigenous Law Centre – CaseWatch Blog

Marion Esau, a 54-year-old Indigenous woman from the Cree First Nation, pleaded guilty to charges of having trafficked in cocaine and having had cocaine in her possession for the purpose of trafficking. A Pre-Sentence Report and Gladue report were prepared. Ms. Esau was from a large family from the same biological parents. The family had problems with alcohol, and violence was common in the home. Suicide was rampant, indeed one of her brothers committed suicide at the age of 14. Furthermore, the family followed a traditional lifestyle, placing little emphasis on schooling. Her father and several members of her family attended Indian residential schools.

Because her parents are Pentecostal, Ms. Esau was forced into marriage at the age of 16. Her mother was the one who chose her husband, an uneducated man who lived primarily in the woods. During her marriage, she had four children, and was subject to extreme domestic violence. Isolated, friendless, and unable to see even her parents, she considered suicide. When she left her husband, she also had to leave her children behind. She went to social services for help, but did not receive any. After leaving her husband, she became involved with another man but also experienced severe violence in that relationship. Her current spousal relationship is not violent, but they were homeless.

Ms. Esau has a criminal record going back to 1999, when she was 34 years old. Her prior offences are related primarily with her periods of homelessness and substance abuse. The offences were mostly assault, threats, and theft, and they resulted in occasionally supervised probationary sentences, community work, and fines. She accepts full responsibility for her actions and has shown a good capacity for introspection and an acceptable degree of empathy, both for her community and individually. In the probation officer’s opinion, Ms. Esau must take part in various treatment and programs to heal the wounds caused by her past life. The author of the Gladue report emphasized that Ms. Esau is worried about her husband and daughter if she is sent to prison. Her daughter sometimes gives her some respite by helping her take care of her son, who is epileptic and an alcoholic.

The Court notes that Ms. Esau, as an Indigenous woman, had been victim of violence as it has been discussed in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Without setting aside the other principles of sentencing, the Court notes the importance of the principle in section 718.2(e) Criminal Code. In cases involving Indigenous offenders, consideration should be given to all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. The Court finds that a suspended sentence of 36 months with restorative justice measures to be an appropriate sentence.