R v JC, 2021 MBQB 52

A conditional sentence was considered fit and appropriate for an Indigenous offender that pleaded guilty to assault. He cares for his three children, is not a threat to the community and in keeping with Gladue principles, will keep his family unit together.

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In 2017, the accused pleaded guilty to assaulting a victim. The victim was 17 and the accused was 22 at the time of the event. Both were intoxicated when they got into a vehicle together. The victim, who was in the passenger seat, passed out and awoke to find the accused on top of her. Despite her struggling, he pinned her down and threatened to hit her. He is now being sentenced for this matter.

The accused has some Gladue factors but had a good upbringing, a history of employment, and is the father of three children that are in his care. He does have an unrelated youth conviction, and not expressed remorse. However, the accused, an Indigenous man from Waywayseecappo First Nation, has a connection to his community. He has participated in sweat lodge ceremonies with his father, as well as on his own. The accused has his own children involved in traditional Indigenous ceremonies. The accused also participated in trapping with his father, when his father used to do so. He also has had issues with substance abuse, but when the accused was charged with this offence, he stopped drinking.

While a custodial sentence is needed to denounce the actions of the accused, a period of actual incarceration is not needed. He is sentenced to a period of incarceration of 9 months, to be served in the community, subject to conditions. As well, a term of probation of 2 years following the completion of the sentence is imposed. The accused is not a danger to the community and the safety of the community would not be endangered by the accused serving his sentence in the community. The accused has care of his three children. The breakdown of familial relationships is a recurring consequence of colonialization. In this case, the accused being incarcerated would continue that intergenerational harm. A conditional sentence would keep this family unit together.

R v RS, 2021 ONSC 2263

A jury acquitted an Indigenous man of one count of sexual assault, but found him guilty of another count of sexual assault and the offence of choking with intent to overcome resistance to facilitate the sexual assault. A 90-day intermittent sentence for the choking concurrent to a 2-year less a day conditional sentence for the sexual assault are the fit and proportional sentences which will allow the accused to keep his job, while seeking rehabilitation. The sentence is to be followed by probation for 2 years.

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The accused and victim initially met at work, where they struck up a friendship. However, in 2018, they both became intoxicated on a social night out. Eventually they reached her residence, but cannot recall all the events that led to it, but became aware of a sexual assault occurring on her in her home. She struggled and repeatedly told the accused ‘no’, and tried getting away. Her throat was grabbed and she was overpowered when he forced himself on her. A neighbor who thought she heard distress, attempted to intervene but both the accused and the victim made it appear that there was nothing wrong. After texting the accused after he left, the victim realized how upset she was and reported her state to a friend, then subsequently called the police.

The accused is 38 years old, and has substantial Gladue factors. He is connected to the Michipicoten First Nation on the shores of Lake Superior. There was domestic violence and substance abuse in his home. There are a number of aggravating factors to consider, however, mitigating factors are present, such as the employability of the accused, he is a first time offender, and has post-secondary education as well as shown insight into his actions, including remorse.

The sentencing in this matter is for two offences, sexual assault and choking. Indigenous women experience disproportionate rates of violent victimization in comparison to their non-Indigenous counterparts. Section 742.1 of the Criminal Code provides for a conditional sentence. The test has several elements: 1) the term of imprisonment must be less than two years; 2) service of the sentence in the community must not endanger the safety of the community; and 3) it must be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.

Determining a conditional sentence in this matter will not endanger the community in this matter. The decision whether to impose a conditional sentence must be consistent with s 782.1(e). The Gladue imperative relates to the outcome of the sentencing process, not just the methodology. The Court, however, is troubled by the choking to facilitate an offence, as it is inherently dangerous conduct. Real jail time is necessary to reflect the additional gravity of this act. In this case, the sentence for the choking should be concurrent to the sexual assault sentence. The offences are so closely factually and temporally linked to each other that they constitute a single criminal transaction. It is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s 742.1 have been met in respect of one or more but not all of the offences.

R v Alfred, 2021 BCCA 71

Appeal dismissed. The appellant was convicted of sexual interference and sought to appeal his nine month custodial sentence. The Court found that the sentencing judge clearly considered a number of mitigating factors, including the appellant’s history as an Indigenous person in order to arrive at a sentence that reflected significant restraint. The Court notes that a victim’s willing participation is not an indication that sexual violence has not occurred as sexual offences against children are inherently violent.

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The 27-year-old Indigenous appellant, Mr. Alfred, was convicted of sexual interference and sentenced to nine months imprisonment followed by 24 months of probation. Mr. Alfred attempted to appeal his conviction, but it was dismissed. He now comes before the Court to appeal his sentence. In doing this, the appellant argues that the sentencing judge failed to give effect to section 718.2 of the Criminal Code which sets out the principles of restraint and the need to consider the least restrictive sentence, particularly in the case of an Indigenous offender. The appellant held that the appropriate sentence here would be a suspended sentence, as opposed to the custodial sentence he was given.

In considering Mr. Alfred’s circumstances, the Court had the benefit of referring to a presentence report which also commented on Gladue factors. The report revealed that Mr. Alfred himself was a victim of sexual abuse as a child, was exposed to alcohol abuse, and suffered some dislocation from his family. Having reviewed these circumstances, the Court found that the sentencing judge had adequately considered the appellant’s history as an Indigenous person.

In considering the appellant’s argument that the sentencing judge arrived at a sentence that did not reflect proper restraint, the Court considered the principle of proportionality. Specifically, the Court sought to ensure that the sentence imposed on Mr. Alfred reflected his moral culpability and the gravity of the offence. With regard to this, the appellant submits that the complainant wanted her relationship with the appellant to happen, and that she was not pressured to enter into sexual relations with Mr. Alfred. The appellant submits that the victim’s willingness is a factor differentiating this case from cases of predatory sexual violence against children. The appellant argues that this “willingness” by the victim reduces his moral blame worthiness and is highly relevant to proportionality in this case since indications of predatory sexual violence against children were not present. The appellant holds that this justifies a reduced sentence.

The Court rejects this argument on the basis that it is inconsistent with case law that states that sexual offences against children are inherently exploitative and require higher sentences. (R v Friesen, 2020 SCC 9). The Court concluded that the sentencing judge considered all relevant factors, including the appellant’s history as an Indigenous person, and arrived at a sentence that reflected significant restraint. The Court found that the reasons for the sentence reflect no error in principle nor was the sentence demonstrably unfit.

R v Ireland, 2021 ONCJ 159

An Indigenous first offender was sentenced to a further 100 days over his presentence credit for a jewelry store heist. The value of the stolen jewelry is estimated at over half a million dollars. In lieu of forfeiture, he is fined $162,500.00 to pay in four years, or will have to serve 2 years in custody.

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In 2020, Mr. Ireland, an Indigenous man and first time offender, pleaded guilty to robbery contrary to s 343(a) of the Criminal Code for a jewelry store heist in 2019. Mr. Ireland and his accomplice entered a jewelry store masked and with sledgehammers. After intimidating the staff and smashing cases containing jewelry, they exited into a vehicle driven by a third accomplice. The entire incident was captured on the store’s video surveillance cameras.

At a different location, they changed vehicles driven by a fourth accomplice. That vehicle’s driver was under police surveillance at the time. Police were led to a residence on the Oneida Settlement where arrests were made after a K9 pursuit, and evidence of the robbery was located. The value of the stolen jewellery is estimated to be $530,545. None of it has been recovered.

Mr. Ireland has significant Gladue factors according to a Gladue report and pre-sentence report. He is a member of the Chippewa of the Thames First Nation. The reports, however, have conflicting information regarding his family members’ history in residential schools. What was apparent was substance abuse and domestic violence in his upbringing. He suffers from mental health issues and has limited employment history. Mr. Ireland is a committed father and is nurturing to his family.

Balancing all aggravating and mitigating factors with the sentencing principles, the appropriate sentence imposed on Mr. Ireland was one of four and one-half years in custody. Mr. Ireland is sentenced to an additional 100 days over and above the 385 days of pre-sentence credit he would normally be entitled to, leaving a remainder of 38 months to serve. The Court recommends Mr. Ireland be assessed by Correctional Services under their Indigenous Intervention Centre for possible placement in a Healing Lodge.

Despite Mr. Ireland’s arrest within an hour of a calculated jewelry store robbery, more than half a million dollars of jewelry remains unrecovered. In lieu of forfeiture, there will be a fine of $162,500 pursuant to section 462.37(3). Mr. Ireland has 4 years within which to make payment of the fine. Pursuant to section 462.37(4)(v), in default of payment, he will have the minimum sentence imposed of 2 years custody. The Court waives the application of the victim fine surcharge.

R v CZ, 2021 BCPC 25

First time Indigenous young offender sentenced to 24 months’ probation for sexual assault of an inebriated 14-year-old. The Court considered the appropriate principles under the Youth Criminal Justice Act, and determined that a sentence of 24 months’ probation is fitting in light of the circumstance of the offence and the offender.

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C.Z., and Indigenous youth and first time offender, was convicted of sexual assault. He was 16 year’s old in 2018 when he assaulted an inebriated victim, who was then 14 years old. He ignored her pleas to stop and overcame her attempts to resist, forcing sex on her. The victim on the following day of the assault disclosed to her friends, mother, and the police, that the offence occurred in the early hours of the night following a house party.

The Youth Criminal Justice Act [“YCJA”] sets out a sentencing regime which differs from the regime established under the Criminal Code. The YCJA created a separate stream from young persons in recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system. A Gladue report, and a Psychosocial and Psychological Assessment report were produced to the court by Youth Forensic Psychiatric Services. Among significant Gladue factors, C.Z. had a childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse, and transgenerational trauma.

Under s 42(14) of the YJCA, the maximum combined duration of sentences is two years, unless it is a serious offence for which an adult could receive life imprisonment, in which case the maximum custodial sentence is three years. Under s 2 of the YJCA, sexual assault meets the threshold of a “violent offence”, as it is defined as an offence that causes bodily harm. For young offenders, this is to be a highly individualized process which considers the offence, the circumstances of the offence, and the circumstances of the offender (R v PR, 2018 SKCA 27).

The court notes the aggravating factors at play. Despite admitting guilt, C.Z.’s psychiatric assessments demonstrated concern for his risk of recidivism, stating that as the offender continues to mature into adulthood that reassessment is imperative. Despite the offender’s harsh upbringing and admission of guilt, his offence unequivocally and gravely affected the victim’s life. A sentence of 24 months’ probation is appropriate.

R v Herman, 2021 YKTC 12

An Indigenous offender is sentenced to conditional custody to be served in the community with support from the John Howard Society, followed by probation. Although convicted of a sexual assault on an Indigenous woman, a rehabilitative approach is considered appropriate in the overall balancing of the principles of sentencing, which included the accused’s significant Gladue factors.

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Mr. Claude Herman, a 42 year old man and member of the Chipewyan First Nation, was convicted of sexual assault on an Indigenous victim. Mr. Herman groped the woman, while in a highly intoxicated state. This offence occurred within the larger backdrop of the victimization of Indigenous women in Canada. This same backdrop of systemic and individualized factors was also considered in the sentencing as he is an Indigenous offender (R v Gladue, [1998] 1 SCR 688).

Mr. Herman does have a criminal record with two prior convictions for assaults, but also has significant Gladue factors. He has limited education and has had trouble with domestic violence in his common-law relationship. However, he has participated in rehabilitative programming and has avoided trouble during his incarceration. He does have remorse for his actions. Mr. Herman’s substance abuse and associated violent behaviour cannot be dissociated from the Gladue considerations.

If Mr. Herman is able to comply with the rules and requirements of residency at the John Howard Society, then there is a benefit to society in the reduction of the longer-term risk he poses, through his rehabilitation. The Court is satisfied that the victim is not at a risk of harm by Mr. Herman. There is no indication that Mr. Herman poses any significant risk of committing further sexual offences against women. The safety of the community is not endangered by allowing Mr. Herman to serve his sentence in the community, with residency at the John Howard Society and compliance with its rules and requirements as the foundation for the order.

The Court is satisfied that a fit sentence for Mr. Herman is a period of custody to be served conditionally in the community for a period of six months. Mr. Herman will be placed on a probation order for a period of one year with terms, along with a $100 victim surcharge.

R v Bennett, 2021 NLSC 26

A first time Inuit offender, who maintains his innocence, was convicted of sexual assault involving forced anal intercourse with an Indigenous victim. The Court determined that a further 90 days imprisonment and 18 months supervised probation with ancillary orders was fit in the circumstances.

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Mr. Bennett, an Inuit man, was convicted of sexual assault against the complainant contrary to s 271 (1) of the Criminal Code (R v Bennett, 2020 NLSC 147). In 2017, the accused and complainant consensually engaged in sexual intercourse after meeting in a bar and both were heavily intoxicated. After an attempt at anal intercourse, the complainant protested, and the accused acquiesced. However, he attempted again and forced anal intercourse against her will and firm protestations. The complainant subsequently called the police. Upon seeking medical observation, and because she was still inebriated, she gave a formal statement regarding the sexual assault in the following days. The accused has denied any guilt, although he testified he had no recall of the events.

Her explicit communication during their sexual activity, that the accused did not have consent for anal intercourse, did not prevent her from being physically restrained by the accused who forced himself on her anyways. Women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact. All individuals are entitled to have their personal and sexual integrity respected. This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact.

The accused has Gladue factors to be considered, but has been a long term relationship and has two children. He is employable as a construction worker and has had a steady work history. Despite his intoxication of the night of the sexual assault he does not appear to suffer from substance abuse. He has no prior criminal history, and now that he has been in remand, fears homelessness and significant debt upon release.

Balancing the mitigating and aggravating factors and relevant caselaw, the fit sentence for sexual assault in these circumstances is the lower range of 3 years imprisonment. A further 90 days in custody from the time already spent in remand and an order for supervised probation of 18 months with ancillary orders, is determined to be a fit sentence.

R v BTJN, 2021 BCPC 44

An Indigenous offender pleaded guilty to sexual touching of a minor. This occurred over a three year period that began when the victim was seven years of age. Despite Gladue factors of the offender, the young Indigenous girl has experienced horrible life altering effects from the violations. A conditional sentence is not adequate, thereby he is sentenced to six months in custody followed by a 24 month probation order.

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BTJN, a 28 year old Indigenous man, has pleaded guilty to touching for a sexual purpose, the body of his stepdaughter, contrary to s 151 of the Criminal Code. The victim is also Indigenous, which is an aggravating factor because of her vulnerability. These violations occurred from the young age of seven. She is now 12 years old. The offender also has three young children, in which he is the biological father.

The violations of his stepdaughter, has horribly impacted her life, as she feels isolated from her community in which her stepfather lives, her mother, although she believes her, and the victim no longer participates in the many extra-curricular activities that previously brought her joy. She has yet to access counselling at the date of this sentence.

Although BTJN has Gladue factors, is employable and has had some access to counselling in the pandemic, the emotional harm suffered by his stepdaughter continues to impact her significantly today, which cannot be minimized. Although a conditional sentence order may be appropriate in some circumstances for this type of offence, it is not adequate in this matter. The victim was very young, the offending occurred over a period of years, and the victim has been horribly impacted.

BTJN is sentenced to six months in custody followed by a 24 month probation order. The Court does not accede to the Crown’s request for a larger safety zone for the stepdaughter in the probation order, because a 200 kilometre ban would amount to banishment from BTJN’s home community. That would not be an appropriate outcome under this sentence as he will require support to succeed on this path of rehabilitation.

R v Kruger-Allen, 2021 BCSC 445

An Indigenous man is sentenced to almost three years for assaulting three young people, with one count stayed. He has significant Gladue factors and has shown receptivity for rehabilitation, if he can get his substance abuse addressed while incarcerated.

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On a stretch of beach in the City of Penticton, a group of young people were socializing at a firepit. Mr. Thomas Kruger-Allen was among them, and under the influence, groped a woman. She protested and Mr. Kruger-Allen punched her in the chest. Another young woman intervened and he punched her in the chin. Many bystanders gathered to watch the altercations, where on Mr. Kruger-Allen attempted to leave. On his way out he punched a young man who was inquiring what was happening. The blow had enough force that it not only incapacitated the young man, but he fell and his head struck the concrete, resulting in long lasting injuries. Mr. Kruger-Allen fled the scene and was arrested at his trailer. Because the police did not provide a warrant, there was also a Charter challenge from Mr. Kruger-Allen’s defence. Mr. Kruger-Allen has pleaded guilty to assaulting both young women, and to an aggravated assault of the young man and is now to be sentenced.

Mr. Kruger-Allan has significant Gladue factors. He is Indigenous from Penticton Indian Band on his mother’s side. There is severe intergenerational trauma, including substance abuse, domestic violence and neglect. He spent time in foster care and never received the proper supports to deal with his anger issues. Despite the difficult circumstances of his upbringing, Mr. Kruger-Allen completed grade 12 and found employment working for a cousin as a drywaller for three years, until he was remanded into custody in connection with these offences. His employer appreciates his work ethic and would hire him back. Mr. Kruger-Allen began counselling which has shown very beneficial to his path for healing.

Mr. Kruger-Allen does have a previous criminal record that includes three convictions for breach of an undertaking or recognizance, all apparently involving broken bail conditions, and a related conviction for an assault. He was out of jail on a recognizance of bail that included a condition that he abstain from the consumption or possession of alcohol. He was in breach of that condition, having drunk a great deal on the night of the assaults. While in custody, Mr. Kruger-Allen has had to abide by institutional rules. He did very poorly at first. His institutional convictions include possession of contraband, threatening or abuse of staff, assault of another inmate, disobeying staff direction, and obstructing an officer. His conduct improved over time. While in prison, Mr. Kruger-Allen has completed courses in living without violence and substance abuse management. His supervising probation officer reports that he was hostile, insolent and indifferent at first, and has demonstrated significant improvements in his attitude, insight and maturity.

Despite notable aggravating factors, there are also significant mitigating factors, including Mr. Kruger-Allen’s Indigenous background. This mitigates but do not eliminate his moral blameworthiness (R v Finlay, 2016 BCCA 299), however, the objective of rehabilitation carries particular weight in this case. Mr. Kruger-Allen is sentenced to imprisonment for the assault on the young man for five years less two years and 68 days, with a net sentence of two years and 297 days. Another count has been stayed, and the assaults on the young women is a net sentence of one day in jail, to be served concurrently.

As for the police breach of Mr. Kruger-Allen’s rights by entering into his residence to arrest him without a warrant, section 529.3 of the Criminal Code permits the police to enter into a residence to effect an arrest even without a warrant, if the conditions for obtaining a warrant exist. The officers’ objective was lawful as it was to take Mr. Kruger-Allen into custody. Their entry into the trailer was momentary, and ended as soon as they had him in custody. The police did not use excessive force. Mr. Kruger-Allen was not injured. He waited until the middle of his sentencing hearing to raise the matter. In sum, the officers’ misconduct was not egregious (R v Bacon, 2020 BCSC 1377; R v Punko, 2010 BCCA). A right-thinking Canadian would not consider that the police actions in this case gave rise to an abuse of process or did violence to the shared values of society.

R v JG, 2021 ONSC 1095

The Court sought to impose a sentence which took into consideration both the crimes and circumstances relevant to the particular case and defendant. In doing so, the Court noted the defendant’s experiences as a Black man who experienced systemic discrimination throughout his life, akin to Gladue factors used in the sentencing priniciples for Indigenous offenders. The Court found that while this should be considered as a mitigating factor, given that this is a sex trade related offence, deterrence and denunciation must ultimately be considered as paramount sentencing objectives here. The Court concluded by imposing a global sentence of four years and six months.

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The offender, J.G. was convicted of five criminal counts relating to his active involvement in the complainant’s work in the sex trade industry. The complainant is a minor who sought out J.G. to assist her in setting up and managing a sex trade enterprise. J.G. provided her with guidance on how to carry out the trade and received 50 percent of the complainant’s sex trade earnings.

The central area of contention within this case revolves around the Court’s objective to determine a fair and just sentence. In doing this, the Court sought to consider the circumstances of the offender and the offence, which involved an assessment of relevant mitigating and aggravating factors.

In assessing these factors, the Court noted several aggravating factors, including the young age of the complainant, who was 17 at the time J.G. oversaw her work in the sex trade. J.G.’s material benefit from the sex trade work, and the fact that he had a lengthy criminal record which included a former conviction and sentence for a sex trade related offence were also considered to be aggravating factors.

Mitigating factors taken into account included several aspects of the defendant’s personal circumstances, including his young age of only 27 years old, and his experiences as a Black man and thus member of a racialized community. Specifically related to J.G.’s social history, the Court noted that given that systemic racism against Black people is a notorious fact, it is not necessary for a Black offender to prove its impacts before it can be considered a mitigating factor, akin to Gladue factors used in the overall consideration for sentencing Indigenous offenders.

The Court concluded that while rehabilitation must remain an importance objective to consider, deterrence and denunciation must still be considered as the paramount sentencing objectives here given that this is a sex trade related offence. In balancing these sentencing objective as well as the aggravating and mitigating factors, the Court found that the appropriate sentence here is four years and six months.