Tag Archives: sentencing

R c Charlish, 2020 QCCQ 2438

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

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

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

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

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

R v Sabattis, 2020 ONCJ 242

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

R v JP, 2020 SKCA 52

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

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

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

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

R v Duncan, 2020 BCSC 590

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Application granted. The Indigenous accused is to be released on bail, subject to stringent conditions, on the tertiary grounds for pre-trial custody in excess of 90 days and concerns surrounding the COVID-19 pandemic in jails.

Indigenous Law Centre – CaseWatch Blog

This matter is a detention review hearing pursuant to s 525 of the Criminal Code. The 32 year old accused from Musqueam First Nation has been in pre trial custody for ten months. His custody relates to multiple alleged offences, including breaking and entering. As per the Gladue factors, his life reflects the intergenerational legacy of the horrific historical treatment of Aboriginal peoples in this country. The accused has a lengthy criminal history.

Counsel for the accused provided new evidence combined with a change in circumstances that warrants a re-visiting and reassessment of the restrictive and supervised treatment program at VisionQuest as a viable and proportionate alternative to the accused’s continued detention. It has culturally relevant programming and a high level of supervision.

The overarching question before the Court is whether the continued detention of the accused until his trial(s) is still justified on one or more of the three grounds specified in s 515(10) of the Criminal Code (R v Myers, 2019 SCC 18). The Court is satisfied that a release plan requiring the accused’s participation in VisionQuest’s isolated residential treatment program combined with strict mobility restrictions would be a culturally responsive and appropriate application of the Gladue factors in this particular case.

There also remains the question of the COVID-19 pandemic. Much of the case law that has developed thus far on this subject deals with the tertiary ground for detention. There are an increasing number of cases which have held that the risk of infection posed to inmates while incarcerated in detention centers awaiting trials is also a valid factor when considering the secondary ground for detention specified in s 515(10)(b) of the Criminal Code (R v TK, 2020 ONSC 1935).

The government is well aware of the risks involved and has implemented a number of measures designed to reduce the spread of the infection in jails. In this particular case Court already concluded that the accused’s proposed release plan satisfactorily addresses public safety concerns, however, COVID-19 concerns would have tipped the balance in favour of interim release rather than continued detention on secondary grounds. Although the break and enter offenses are serious, no physical violence was involved.

The accused is a drug addict with a criminal history of property crimes fuelled by his addiction. That addiction and most, if not all, of the disadvantages he has suffered in life are the product of the sad social problem that is the legacy of the mistreatment of Aboriginal peoples in Canada.

R c Neeposh, 2020 QCCQ 1235

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

 

R v Hartling, 2020 ONCA 243

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Conviction appeal dismissed. Sentence appeal allowed in part along with a stay of a second breach of probation charge. The Crown tried to rely on the delays involved in obtaining a Gladue report to justify the post-verdict delay.

Indigenous Law Centre – CaseWatch Blog

Following an afternoon of heavy drinking with her adult son and boyfriend, the complainant was seriously assaulted. She told first responders that her son was responsible. The son was charged. The mother testified for the Crown that her son attacked her and her boyfriend following an argument. Months later the trial resumed. This time the mother testified for the defence. She changed her testimony and said that it was her boyfriend, not her son, who attacked her.

The trial judge convicted her son for aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody. After considerable delays, the trial judge found the appellant guilty of aggravated assault against his mother, her boyfriend along with resisting arrest and two counts of breach of probation. Following 8.2 months of pretrial custody, he was sentenced to 21.8 months of incarceration.

The son appealed his convictions and sentence. However, the post-verdict delay was determined unacceptable to this Court. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report. Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately. The issue of post-verdict delay was addressed by this Court in R V Charley, 2019 ONCA 726 [“Charley”], where a presumptive ceiling of five months was set for the time from verdict to sentence.

In an attempt to justify the delay, the Crown alleged extraordinary circumstances because of the issues with the Gladue report and because the case was already in the system when Charley was decided. The Court does not accept that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable.

The appellant was entitled to a Gladue report, the trial judge ordered it, and subsequently relied on it. According to R v Jordan, 2016 SCC 27, the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to qualifications but these qualifications do not apply in this matter. A 14-month delay was unreasonable and breached the appellant’s s 11(b) Charter rights.

A stay of a valid conviction would impact public confidence in the administration of justice. The possibility of vacating a valid conviction based on sentencing delay is “an unjustified windfall” for the accused (Betterman v Montana, 578 US, 136 S. Ct. 1609). The appropriate and just remedy here should target the sentence, not the conviction. The appellant was convicted of a violent offence against his mother in her home. It would bring the administration of justice into disrepute to stay the conviction. For the remedy to target the sentence, it must be based on and align with sentencing principles. The sentence is reduced by five months.

R v Evic, 2020 NUCJ 7

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

R v Lemieux, 2020 ONCJ 54

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The Court did not believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage. He is sentenced to 26 months for the possession of child pornography contrary to s 163(4) of the Criminal Code.

Indigenous Law Centre
Indigenous CaseWatch Blog

Just over a year prior, the offender entered a guilty plea to a single count that he did, without lawful excuse, possess child pornography in the form of videos and images contrary to section 163(4) of the Criminal Code. The Crown elected to proceed by way of indictment. Leading up to sentencing, there was preparation of a pre-sentence report, a Sexual Behaviours Assessment and a Gladue report.

The Ottawa Police Service initiated an investigation into the possession and sharing of suspected child pornography by following the information of an IP address that identified and led them to locate the offender’s home address. A search warrant was executed on the residence and the offender was placed under arrest. A desktop computer was seized as well as an external hard drive. There were 6617 images of child pornography and 611 videos of child pornography.

Although Gladue factors could be relevant to a sentencing for possession of child pornography, the offender brought this claim forward especially late in the proceedings after he was expressly provided opportunity to claim First Nations heritage. He was adopted at six months into a Franco-Ontarian family and therefore the source of ethnicity would be his birth parents. He could only recall his mother’s first name. The Court did not ultimately believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage.

Overall, in the circumstances in this case, the record did not reflect a situation where credit should be given due to the restrictive nature of the bail conditions. Further, the court was not convinced on a balance of probabilities that the offender had been making serious and consistent efforts towards rehabilitation and thus not able to receive any credit.

An important case in Ontario involving sentencing for the possession of child pornography is R v Inksetter, 2018 ONCA 474 [“Inksetter“], and in the present matter the offender’s collection was nowhere near as large and while vile, did not seem to have been of the same level of depravity as that in Inksetter. He was cooperative with police while arrested, he plead guilty, complied with the conditions of his bail and had been a model resident at the John Howard Bail Bed Program. However, there was no clear indication the offender was truly remorseful. His cavalier attitude towards treatment lead the court to believe he had no true insight into his pedophilia. The age of children, size of collection and nature of acts depicted were aggravating. The most aggravating was his prior criminal record which consisted entirely of sexual assaults against children. This single factor alone would make a reformatory sentence inappropriate. Based on the foregoing, a sentence of twenty-six months was appropriate with the ancillary orders put forward by the Crown granted.

R v Komak, 2020 NUCJ 12

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

Indigenous Law Centre
Indigenous CaseWatch Blog

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

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

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

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

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

R v HO, 2020 ONCJ

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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