Tag Archives: sentencing

Peepeetch v R, 2019 SKQB 132

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Application granted for a publicly-funded Gladue report. A Gladue report, however, is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible or appropriate source of such information.

Indigenous Law Centre – CaseWatch Blog

The applicant was convicted after a trial on charges of impaired driving and refusing to provide a breath sample. During the trial, he also pled guilty to a charge of possession of brass knuckles, a prohibited weapon. Following the trial, sentencing was adjourned so that a Pre-Sentence Report [PSR] could be prepared. Since the applicant is of Aboriginal heritage, the court directed that the report should contain information, such as Gladue factors (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218), particular to Mr. Peepeetch’s circumstances as the Gladue analysis is mandated by the Criminal Code. The applicant’s counsel submitted an application for a publicly-funded Gladue report as the applicant did not have the resources to cover the costs himself.

It was determined that when evaluating whether a publicly-funded Gladue report should be ordered, the following parameters must be met: i) the assistance of the Gladue report must be essential to the judge discharging their judicial function in the case at hand; and (ii) the authority to order for the preparation of Gladue reports should be used sparingly and with caution, in response to specific and exceptional circumstances (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; R v Sand, 2019 SKQB 18). Such circumstances exist where a PSR prepared by a probation officer is not capable of providing the information necessary to conduct the proper analysis under ss. 718.2(e), and there is no other effective method of obtaining the necessary information and bringing it before the court in a timely fashion.

When deciding if a publicly-funded Gladue report was appropriate in this case, the court considered a number of factors including the nature of the analysis called for by ss 718.2(e), the sufficiency of the information provided in the current PSR, and if that report is lacking the availability and likely effectiveness of other measures that may be taken to address the deficiencies. Further, the court decided that a Gladue report is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible, nor the only appropriate source of such information. Whether or not such a report is required is based on the context of the situation. It is the duty of the sentencing judge to ensure that the information they receive is relevant and necessary for such analysis. Overall, it was determined that the information contained in the PSR report was not sufficient for the court to carry out its judicial function in sentencing the applicant and thus, a publicly-funded Gladue report was ordered.

R v McGinn, 2019 ONSC 4499

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Joint submission for sentencing granted. After considering the Gladue report and at the offender’s request, part of the sentence will be spent in the penitentiary to take advantage of programming specific to Aboriginal offenders.

Indigenous Law Centre
Indigenous CaseWatch Blog

After a search of his vehicle, the offender was arrested for drugs and weapons offences. The nature of the drugs involved in this case, are highly addictive substances and this was an aggravating factor. The offender also had a lengthy criminal record, which is reflective of an individual with a substance abuse problem.

The mitigating factors included a guilty plea, as well he expressed insight into his problems. Drug and alcohol abuse, as well as suicide and mistreatment within his family were present in his experiences as a child. His childhood and adolescence were traumatic for reasons that were not of his making. The drug abuse that he fell into has contributed to his involvement within the criminal justice system. The offender recognized that drug addiction had led him down a bad path. His paternal grandparents remain supportive of him and are willing to have him live with them on his release from jail.

The offender’s Aboriginal background no doubt had an impact on him but he appears to have benefitted from involvement in programs for Aboriginal offenders while in custody. The joint submission was accepted, modified slightly to accord with the offender’s request to be housed in the penitentiary to take advantage of programming. The offender was sentenced to three years and nine months in jail, less days spent in presentence custody.

R v Kowtak, 2019 NUCJ 03

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Appeal allowed. The Justice of the Peace is required to consider Gladue factors in crafting an appropriate sentence. This was an error in law that justified an appellate intervention. A conditional discharge is a fit sentence for the appellant.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant was at home, and while intoxicated and arguing with her spouse, assaulted her 15-year-old-daughter who attempted to intervene. The accused plead guilty and received a suspended sentence with nine months probation and a $100 victim fine surcharge. This is an appeal of that sentence on the grounds that the Justice of the Peace failed to consider Gladue factors, made impermissible statements about the accused, and deferred to the Crown’s position as presumptively reasonable.

It was determined in this appeal that the sentencing Justice of the Peace made an “impermissible speculation” about the accused’s lack of previous criminal record (R v Morrissey, 22 OR (3d) 514). The presumptive reasonableness of the Crown’s position was reviewed, and it was decided that the Justice of the Peace accepted the recommendation without considering the Defence recommendation. Any official deciding on an appropriate sentence must hear and consider both positions before deciding on a sentence. Further, there was no consideration of whether a conditional discharge would be appropriate, and this impacted the sentence. After considering these factors, and the role and value of Community Justices of the Peace, it was determined that the Justice of the Peace made a significant error in law as well as errors in the principle that affected the sentence in the case.

In deciding the sentence, the circumstances of the offender, and the applicable sentencing principles, including aggravating and mitigating factors, were considered. The Court followed s 718.1, which requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The charge of assault is statutorily aggravated under ss 718.2(a)(ii.1) and (iii) because it was committed on a person under the age of 18, to whom the appellant was in a position of authority, as her mother. The mitigating factors of the case included the fact that the appellant demonstrated remorse by pleading guilty early on and stated she was sorry for what she had done; she was 35 with no prior record; her future employment would be put at risk with a criminal record; the assault was relatively minor and no injuries resulted; as well the Gladue factors of overcrowding and victimization of Indigenous offenders were also taken into account.

The Court determined that it would be in the best interests of the community of Rankin Inlet to see that a history of employment and good behaviour be given substantial weight, as this is a guilty plea to a single, one-time breach of the law. It was determined that the Inuk first offender should be given a chance to show that it was an isolated incident from which she learned an important lesson, and also to avoid a criminal record which could significantly impact her ability to find future employment. The appeal is allowed and she is sentenced to a conditional discharge which will not result in a criminal record. This appeal was held after the Supreme Court of Canada declared victim fine surcharges unconstitutional with immediate effect, therefore, the appellant shall have the victim fine surcharge removed from her sentence (R v Boudreault, 2018 SCC 58).

R v Overby, 2019 MBQB 102

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Due to the violent nature of the offence and lack of mitigating factors, the Indigenous offender, convicted of second degree murder, is sentenced to life in prison with no possibility of parole for 15 years.

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Overby, an Indigenous man, has been found guilty of second-degree murder for the brutal killing of Christine Wood, a young Indigenous woman he had met on a dating app the same day he had murdered her. After engaging in sexual relations, he proceeded to murder her in the basement of his house. After the killing, he attempted to cover up the murder, until Ms. Wood’s body was found months later by chance.

The Gladue report submitted for Mr. Overby does not highlight any mitigating factors for the offender. He had an unremarkable childhood and the violence committed was considered “out of character”. The Court does not accept his version of events, including having no memory of what occurred.

In considering an appropriate parole ineligibility period, the Court must keep in mind that it must not be less than 10 years or more than 25 years according to s 745(b) of the Criminal Code. Balancing various caselaw with the sentencing principles, the aggravating factors that surrounded Ms. Wood’s unfortunate and violent death, required a more stringent parole ineligibility period (R v Shropshire, [1995] 4 SCR 227).

There were minimal mitigating factors other than the fact that alcohol was consumed by both parties and that Mr. Overby may have been depressed about his relationship situation. At the time of the offence, Mr. Overby had no criminal record at the age of 29 but his moral culpability in this case is very high. 15 years of parole ineligibility is deemed appropriate, but regardless, he remains under the supervision and control of correctional authorities for the rest of his life, including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.

R v Pijogge, 2019 NLSC 15

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An Indigenous offender has shown rehabilitative potential through community ties and strong family connections, however, incarceration is an appropriate sentence.

Indigenous Law Centre – CaseWatch Blog

The offender, while heavily intoxicated, had sexual intercourse with the victim, a close friend. Both the offender and victim were of Indigenous descent. The offence happened in her own home while she was also heavily intoxicated and unconscious. The offender was convicted of sexual assault contrary to section 271(1)(a) of the Criminal Code.

Balancing the sentencing principles with the Pre-Sentence Report and Gladue factors regarding the history of the offender, it was noted that he suffered sexual abuse at the hands of an unrelated male when he was a child, and also witnessed a suicide. Although he has never received counselling for these traumatic events, the offender enjoyed a relatively stable upbringing, with caring parents. He achieved his Grade 12 education, and generally maintained employment. The offender has the support of his family and a long-term partner, along with ties to his Indigenous community, which shows rehabilitative potential in addressing his issues with alcohol.

The presence of a criminal record is an aggravating factor on sentence. The commission of this offence showed an escalation in seriousness as compared to the other kinds of offences the accused committed in the past. Alcohol likely played a role in how the offence came to be committed, however, it may explain but does not excuse the behaviour.

The offence was at the serious end of the spectrum in regards of the gravity of conduct. Taking into account the above circumstances, with an emphasis on deterrence, the fit sentence is incarceration for 30 months, along with other conditions.

R v Gloade, 2019 NSPC 55

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Although a first offender, it is proportionate to the gravity of the fraudulent offences committed, that the Indigenous accused serve a custodial sentence and pay restitution and a fine in lieu of forfeiture.

Indigenous Law Centre – CaseWatch Blog

Ms. Gloade committed two serious criminal fraudulent offences against the Elizabeth Fry Society of Mainland Nova Scotia [“Society”] in her capacity as the Executive Director. The Society is a non-profit, charitable organization that engages with vulnerable women and girls to foster reintegration, rehabilitation, personal empowerment and addresses the root causes of criminalization. The organization is dependant, in part, on donations from the community in its effort to fulfill its mandate of providing programs that support some of society’s most vulnerable women.

Ms. Gloade committed the offences while she herself was in a vulnerable state, as her marriage was failing and she was emotionally and financially stressed. The first offender principle requires that the sentencing judge exhaust all other dispositions, before imposing a custodial disposition (R v Stein, [1974] OJ No 93). The first offender principle has been codified in sections 718 and 718.2 of the Criminal Code.

As well, the Court in this matter considered the “sad life” principle. There is an evidentiary basis for its consideration, including the Pre-Sentence Report, the Gladue Report and the sentencing proposal report arising from Ms. Gloade’s Sentencing Circle. This principle also involves an offender to demonstrate a genuine interest in rehabilitation, for example successfully engaging in counselling or treatment. Cases that consider this principle often involve offenders who are victims of sexual or physical abuse, or have experienced a horrific upbringing.

There appears to be a very low risk for Ms. Gloade to re-offend as she has and continues to take the necessary steps to address the underlying causes of her emotional and financial stresses. Although this Court recognizes that rehabilitation is an important objective in the sentencing calculus, it must not be over-emphasized, as there is a real pressing need in this case for a denunciatory sentence as well as one directed at both specific and general deterrence.

All the relevant purposes and principles of sentencing have been considered by the Court in this matter, including the aggravating and mitigating factors, the Gladue factors, and that the sentence must be proportionate to the gravity of Ms. Gloade’s crimes and her degree of responsibility for having committed them. Ordering both restitution and a fine in lieu of forfeiture fulfills the Parliamentary intention of “giving teeth” to the sentencing provisions. She is also sentenced to 60 days to be served at the Central Nova Scotia Correctional Facility with a significant period of probation. As well, a Prohibition Order under s 380.2 is ordered that Ms. Gloade not seek, obtain or continue any employment, or become or be a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person for a period of ten years.

 

R v CGJ, 2019 BCPC 252

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A custodial sentence, with a lengthy period of probation, is appropriate and proportionate for an Indigenous offender found guilty of sexually assault. Serving a conditional sentence would not endanger the safety of the community with the imposition of appropriate conditions.

Indigenous Law Centre – CaseWatch Blog

This matter involves the sentencing of an Indigenous man who was found guilty of the offence of sexual interference, contrary to s 151 of the Criminal Code [“CC”]. At the time of the offence he was 18 years of age and the victim was 13 years of age and they both attended the same secondary school.

Sexual interference is a hybrid offence; the Crown may elect to proceed by way of indictment or summary conviction. The Crown proceeded by way of summary conviction, under s 151(b) CC. The convicted is therefore liable upon sentencing to a term of imprisonment of not more than two years less a day, and to a mandatory minimum sentence of imprisonment for a term of 90 days. The convicted has no prior criminal record and is now a first-time offender. He challenges the constitutionality of the mandatory minimum sentence of 90 days imprisonment provided for in s 151(b) CC, as being a violation of his s 12 Charter right of not being subjected to cruel and unusual treatment or punishment.

It was recently held that the mandatory minimum of a one-year term of imprisonment under s 151(a) CC, where the Crown can proceed by way of indictment, violates s 12 of the Charter and cannot not be saved under s 1 (R v Scofield, 2019 BCCA 3). The defence submits part of the individualized sentencing process this Court should consider is a suspended sentence pursuant to s 731(1)(a) CC, with a lengthy period of probation. Alternatively, if imprisonment is necessary, it should be served in the community under a conditional sentence order pursuant to s 742.1 CC, then followed by a significant period of probation. The existence of the s 151(b) CC statutorily prevents this Court from imposing either of the suggested sentences, until it has concluded that the mandatory minimum sentence violates s 12 of the Charter and cannot be saved under s 1. If the Court comes to that conclusion, it can then apply the available remedy within its jurisdiction.

It was agreed among the parties that if this Court found that the appropriate sentence is 90 days or higher, it can impose the sentence without addressing the constitutional question, as it would be unnecessary to do so (R v Lloyd, [2016] 1 SCR 130). If this Court, however, concludes that the proportionate sentence is below 90 days, then it should assess whether the 90-day mandatory minimum sentence is grossly disproportionate personally for the convicted.

Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (R v Shoker, 2006 SCC 44; R v Angelillo, 2006 SCC 55). Section 718.2(e) does not permit the court to impose an unfit sentence (R v Jackson, 2012 ABCA 154). In deciding whether an Indigenous offender should be incarcerated, a judge must use all available information before the court about an offender to determine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence and denunciation.

In sentencing an Indigenous offender, the sentencing judge must carry out a three-step process: 1) examine the unique systemic or background factors common to Indigenous people as a group; 2) consider the personal circumstances of the offender which resulted in the offender committing the crime for which that offender is before the court; and 3) strive to arrive at a sentence that is informed, just, and appropriate in the circumstances, having regard to the information obtained (R v Gladue, [1999] 2 CNLR 252).

There is no burden on an Indigenous offender to establish a causal link between Gladue factors and the commission of the offences (R v Eustache, 2014 BCCA 337). Although the accused bears the onus of establishing mitigating factors on a balance of probabilities, it can be difficult for Indigenous offenders to establish direct causal links between the circumstances and the offending behaviour (R v Ipeelee, [2012] 2 CNLR 218). While an Indigenous offender need not establish a direct causal link, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (R v DB, 2013 ONCA 691).

The conditional sentence order will permit the convicted to continue to receive the significant benefit of his cultural engagement, the support of his family and his community, be able to continue his employment, and at the same time to receive sex offender treatment. The Accused is sentenced to a five-month conditional sentence order and 30 months of probation. Subsequent to this determination, there will be a pending consideration by this Court of the s 12 Charter arguments.

R v Big River First Nation, 2019 SKCA 117

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Appeal dismissed. Big River First Nation is a “person” for the purpose of sentencing for a minimum fine of $100,000 after it plead guilty to a summary conviction offence contrary to ss 238(1) and 272(1)(a) of the Canadian Environmental Protection Act.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant, Big River First Nation [BRFN], pled guilty to the summary conviction offence of unlawfully failing to comply with an Environmental Protection Compliance Order, contrary to subsection 238(1) and 272(1)(a) of the Canadian Environmental Protection Act [“CEPA”]. The BRFN is a “band” within the meaning of the Indian Act. The sentencing judge found that the BRFN is an “individual” within the meaning of s 272 of CEPA and imposed a $10,000 fine (R v Big River First Nation, 2017 SKPC 16). The Crown appealed and the appeal judge found that the BRFN is a “person” within the meaning of s 272 of CEPA and substituted a sentence of a $100,000 fine (R v Big River First Nation, 2018 SKQB 109). The BRFN in this matter appeals this decision on the grounds that the appeal judge erred in law by finding that BRFN is a “person” within the meaning of s 272 of CEPA. As well, the appeal judge failed to even consider s 273 of CEPA, where the court may impose a fine that is less than the minimum amount if it is satisfied that the minimum fine would cause undue financial hardship.

The distinction as to whether BRFN should be classified as an “individual” or a “person” for the purpose of sentencing is important because of the fine minimums in s 272 of CEPA. An “individual” is subject to a $5,000 minimum sentence, while a “person” is subject to a $100,000 minimum sentence. The sentencing judge held that an Indian Act band is a sovereign nation, not a natural person or a corporation. It was his view that only a corporation can be a legal person and that a band must accordingly be an individual. He concluded that the minimum fine of $5,000 was unreasonable in light of the seriousness of the offence, but that a larger fine would place unnecessary hardship on a community such as BRFN and would damage innocent BRFN members. He imposed a fine of $10,000, noting that any destruction of the BRFN land base and water will be devastating for future generations.

The appeal judge, however, concluded that the respondent was a “person” within the meaning of s 272 of CEPA and fined them $100,000. The term “public body” is well known to the law. There is support for the proposition that the council of a First Nation is a public body (Westbank First Nation v British Columbia Hydro and Power Authority, [1999] 3 SCR 134). As for the meaning of “individual”, there is no definition of that term in CEPA or the Interpretation Act. It has, of course, been interpreted in the context of many statutes and, when used as a noun, has generally been interpreted so as to exclude anything other than a natural person (R v Carroll, 2016 ONCJ 214). There is authority for the proposition that a First Nation may fall within the scope of the term “person” (PSAC v Francis, [1982] 2 SCR 72). It was also determined that an Indian Act Band is a juridical person and is a unique, enduring, and self-governed entity that has distinct rights and obligations (Montana Band v Canada (TD), [1998] 2 FC 3). That supports the conclusion that “person” in s 272(1) includes “public bodies” that are neither bodies corporate nor individuals.

CEPA applies to reserve lands. It also contains mechanisms designed to enable the development of regulations and other measures to bridge the regulatory gap between non-reserve lands, where provincial and municipal laws apply, and reserve lands, where they do not. Those mechanisms provide for the participation of and exercise of jurisdiction by Indigenous governments and the incorporation of Indigenous knowledge. The purpose of sentencing for offences under CEPA is to contribute to respect for the law that is there to protect the environment and human health through the imposition of just sanctions. These objectives are for deterrence and to denounce unlawful conduct that damages or creates a risk of damage to the environment or human health. It reinforces the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.

BRFN submitted it should have the benefit of s 273 if BRFN is found a “person”. From the evidence submitted, the Court could not reasonably support a finding that the BRFN would suffer undue financial hardship from the minimum $100,000 fine.

 

 

Sheck v Canada (Minister of Justice), 2019 BCCA 364

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Application allowed. An order for the surrender of an Indigenous person to face charges of money laundering in the United States is remitted to the Minister of Justice for reconsideration.

Native Law Centre CaseWatch Blog

This is a judicial review of the decision of the Minister of Justice [“Minister”] that ordered Mr. Sheck’s surrender to the United States of America [“USA”] on charges of money laundering. The relief sought is to have the surrender order quashed, or in the alternative, have the matter remitted back to the Minister for reconsideration. The majority of this Court determined that the Minister failed to appreciate the disparity of the more severe sentence the accused would likely be given in the USA if convicted. As well, the Minister failed to consider the accused and his children’s Indigenous heritage and the context of the historical mistreatment by Canada of Indigenous families which forcibly separated children from their parents and culture.

The standard of review with respect to the Minister’s surrender decision is not in dispute. The Minister’s decision is entitled to deference, and interference is warranted only in exceptional cases of “real substance”. This Court considered whether the Minister’s decision fell within a range of reasonable outcomes, and if the correct legal test was applied (Lake v Canada (Minister of Justice), 2008 SCC 23 [“Lake”]; s 57(7) of The Extradition Act). This standard of review recognizes that the decision to surrender the accused is largely political and involved the Minister’s superior expertise with respect to Canada’s international obligations and interests (India v Badesha, 2017 SCC 44). The Minister must take into account Canada’s international obligations, but also consider the rights of the person sought.

Pursuant to s 7 of the Charter, a person is not to be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. In the extradition context, the Minister is not to surrender a person if surrender would “shock the conscience” (Lake) or not to surrender the person if the consequences of surrender would be “contrary to the principles of fundamental justice” (MM v United States of America, 2015 SCC 62 [“MM”]). This necessarily includes, when relevant, the best interests of that person’s children who may be affected by the extradition (MM).

The accused faces a potential sentence of 27 years imprisonment if convicted in the USA. If he enters a guilty plea in a timely manner, that might be reduced to a range of 19 to 27 years imprisonment. In contrast, the Minister considered only the maximum sentence an offender would face in Canada for a corresponding offence of ten years under s 462.31 of the Criminal Code. Mr. Sheck is Indigenous, employed, has a long-term spousal relationship, and supports and is actively involved in parenting four children. It is unlikely that Mr. Sheck’s circumstances would result in the maximum sentence in Canada of ten years’ imprisonment. The authorities suggest that a sentence for money laundering alone in Canada could range from a conditional sentence of less than two years, to a custodial sentence of 18 months to five years (R v Rathor, 2011 BCPC 338; R v Garnett, 2017 NSCA 33; R v Lawrence, 2018 ONCA 676; R v Barna, 2018 ONCA 1034; R v Bui, 2006 BCCA 245; R v Abdel, 2019 ONSC 690; R v Williams, 2019 NBPC 1; R v Rosenfeld, 2009 ONCA 307). The Minister cannot have truly appreciated the gross disparity between the two potential sentences the accused would face.

The Minister also failed to consider the impact of separating the accused from his children in the context of their common Indigenous heritage. Historically, the government-approved residential school program separated Indigenous children from their parents and communities, depriving them of their Indigenous culture and often subjected them to abuse. In numerous contexts, not just sentencing or extradition, the courts are called upon to consider the legacy of harm to the Indigenous peoples in Canada when determining a legal right or remedy (United Nations Declaration on the Rights of Indigenous Peoples; United Nations Convention on the Rights of the Child; Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Specifically, in the “Calls to Action”, the TRC Report identified five action items relating to Indigenous child welfare, including keeping Indigenous families together where safe to do so.

R v Boysis, 2019 ABQB 437

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An Indigenous man may have propensity for recidivist violence, but the Gladue factors support a reduced moral culpability.

Native Law Centre CaseWatch Blog

The accused was convicted by a jury for manslaughter and aggravated assault. The accused has a criminal record which included a prior conviction for manslaughter and other crimes of violence. A high risk of violent recidivism is present which requires intensive supervision and active management if he is to be released in the community. Concerns about the accused’s potential for recidivist violence and the safety of the public must be borne in mind during the proportionality analysis.

The accused is an Indigenous male of Cree descent and the Gladue factors in this case point to impacts of intergenerational trauma from the accused’s mother and maternal grandmother’s residential school experience. The impacts include alcohol and drug abuse, violence, low educational achievement, criminal involvement, loss of language, culture, and traditions. Gang activity is common in the accused’s home community, as well as family violence, extended periods of poverty and homelessness, childhood neglect, chronic unemployment, low income, suicide among immediate family members, and physical and sexual abuse.

The accused was remorseful and had made efforts to disengage from the previous gang connections and lifestyle. He also understands he needs help with his emotional and mental wellness. The reduced moral culpability played a significant role in determining a fit and proper sentence.

Taking into account all the circumstances, including the aggravating and mitigating factors, the accused’s reduced moral culpability, the range of sentence indicated by the authorities and the principles of sentencing set out in the Criminal Code, a fit and appropriate sentence for the manslaughter conviction is 9 years and aggravated assault is 4 years.