Tag Archives: sentencing

R v James, 2020 YKTC 7

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

R v Awasis, 2020 BCCA 23

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

R v BMW, 2020 BCPC 9

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After weighing the sentencing principles with the Gladue factors of the offender, a 32-month term of imprisonment was imposed for the guilty plea of two offenses.

Indigenous Law Centre – CaseWatch Blog

The offender pled guilty to one count of sexual interference and one count of sexual assault under ss 151 and 271 of the Criminal Code. At the time of the first offence, the accused already had a criminal record with 38 convictions, and at the time of the second offence, he had committed an additional 14 offences, that included multiple assaults. The issue for the Court was to determine a proper sentence by taking into account all of the relevant purposes and principles of sentencing, including the circumstances of the offence and the circumstances of the offender.

The offender held Indigenous status and lived in a reserve community that has a legacy surrounding residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. He attended residential school from grades eight to ten. He had a job but lost it for being late and not getting along with his supervisor, which he attributes to alcohol abuse. In his early twenties, the offender lost both of his parents to alcohol abuse and his brother later passed away from a hit and run motor vehicle accident.

Following s 718.2(e) of the Criminal Code, it was necessary for the sentencing judge to consider the above background factors which may have played a part in bringing the offender to the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage. The mitigating factors included the offender’s early guilty pleas, his support from his family and his community, and his Indigenous heritage. The aggravating factors included his criminal record, details surrounding the offences, and the offences’ impact on the victim, a vulnerable Indigenous female. Considering the aggravating and mitigating factors, the Court ordered a term of imprisonment for ten months for the first offence and 22 months for the second offence, for a total of 32 months of imprisonment less time served.

R v Paulson, 2020 ONCJ 86

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After weighing the Gladue Report and other sentencing principles with the circumstances of the offender, 338 days of time served plus one day concurrent was imposed for the guilty plea of three offences.

Indigenous Law Centre – CaseWatch Blog

The 28 year old Indigenous offender pled guilty to three counts of Aggravated Assault, Breach of Recognizance, and Assault. The Court read about the offender’s personal circumstances in a Gladue Report and also had the opportunity to hear from her and her family during a sentencing circle. Following the sentencing principles of s 718 of the Criminal Code, it was necessary for the sentencing judge to analyze the circumstances of the offences and determine the weight of those factors while simultaneously considering the principles of denunciation and deterrence.

The offender is a single mother of four children. Her grandparents attended Residential School, which has had a tremendous impact on her mother, and herself. While growing up, she spent significant periods with relatives and friends before she was placed into foster care where she experienced childhood neglect and sexual abuse. The offender became pregnant at the age of fifteen and began abusing illicit substances while also entering into physically abusive relationships with men. She continued to have three additional children but has lost custody of all four. Losing her children caused the offender to experience Post-Traumatic Stress Disorder [“PTSD”], and she spiralled downward into further drug abuse. She did not have a prior criminal record.

It was accepted by the Court that the offender’s criminal actions were the result of extreme intoxication and that she had no memory of the events in question. Aggravating factors were considered including that the assaults were unprovoked, the assaults involved the use of a knife, the offender was on bail during the time of the attacks and was prohibited from possessing weapons, and the level of violence was significant. The mitigating factors included the fact that the offender pled guilty, she had no prior criminal record, her background as an Indigenous person impacted her life, she had PTSD at the time of the offences, and she was remorseful for her actions. It was decided that an appropriate sentence was one that would reflect the time that she had already served.

R v TLC, 2019 BCPC 314

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After weighing the sentencing principles with information provided by a Gladue report, a conditional discharge with 18 months of probation was imposed for the guilty plea of three offenses.

Indigenous Law Centre – CaseWatch Blog

TLC pled guilty to two assaults on her boyfriend and a breach of bail by having contact with him contrary to ss 266 and 145(3) of the Criminal Code. The Crown and Defence counsel agreed on what the appropriate sentencing for the offence should have been and collaborated to recommend a joint submission for a suspended sentence with an 18-month period of probation. An alternative method of placing the accused on probation would have been a conditional discharge which, would have prevented them from having a criminal record. When deciding whether the joint submission was appropriate, it was determined that the Court should only depart from a joint submission where “the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system” (R v Anthony-Cook, [2016] 2 SCR 204). However, as this case involved an Indigenous offender, the Court found it necessary to evaluate whether there was “enough information to impose a fit sentence that properly considers the Indigenous circumstances of that particular Indigenous accused.”

There was a Gladue report written for TLC. It outlined that the offender was a First Nations woman who was not directly raised with her culture. Her mother was abused when she attended residential school. TLC was abused as a child and grew up with violence in her home. TLC was a victim of domestic assault and had been receiving trauma counselling and therapy. She also was two subjects away from completing grade 12 and had completed the Indigenous Tourism Ambassadors program through the Indigenous Community for Leadership and Development. The Court recognized numerous aggravating factors, including the violence perpetrated against TLC from a male and the repeated victimization that she faced throughout her life. Deterrence, denunciation and rehabilitation were also considered as the offender was charged with spousal assault. It was decided that TLC had truly turned her life around and giving her a criminal record would not serve the public interest; therefore, a conditional discharge with 18 months of probation was imposed.

R v Buffalo, 2020 ABQB 41

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Conditional sentence granted for an Indigenous offender. A conditional sentence is available to an offender depending on the context of the case and if it is appropriate. Sentencing principles, as well as the safety of the community, must be considered in granting restorative sentences.

Indigenous Law Centre
Indigenous CaseWatch Blog

A Gladue report was ordered for an offender, who has pled guilty to three charges contrary to the Criminal Code. The offender is a member of the Samson Cree Nation. He had a difficult and unstable upbringing, which had led to unfortunate life choices. These choices included a criminal record with offenses of theft, break and enter, assault, aggravated assault, a variety of weapons charges, mischief, manslaughter, and instances of non-compliance. However, he had recently turned his life around by embracing his cultural heritage, supporting his family, and operating his own business which employed other Indigenous persons. He was supported by numerous letters of support from community members and local businesses.

Since the offender requested a conditional sentence, the Court undertook the analysis of the four criteria that are required, as outlined by s 742.1 of the Criminal Code (R v Proulx, 2000 SCC 5). This framework directs the Court to determine whether a conditional sentence is “available” in the context of the case and whether it is “appropriate” to impose a conditional sentence. The availability relates to the existence – or lack of – the minimum term of imprisonment, and if not, whether a federal penitentiary term is indicated in the circumstances of the case. Regarding appropriateness, the Court considered whether the fundamental purpose and principles of sentencing are met by a conditional sentence, including the duration and conditions that should be attached. As well, the question was addressed of whether the safety of the community was endangered by the offender serving the sentence in the community.

After reviewing the circumstances of the case, the Court determined that a conditional sentence was available to the offender. It was decided that the restorative sentence met the objectives of the sentencing regime as per ss 718 to 718.2 of the Criminal Code.

 

 

R v Gamble, 2019 SKQB 327

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The accused’s application for a state-funded Gladue Report is dismissed.

Indigenous Law Centre – CaseWatch Blog

 The accused was found guilty for aggravated assault and unlawful confinement of a victim. The victim was waylaid and taken into a house where he was beaten and tortured. He was branded and his finger was cut off.

The sentencing of the accused has been delayed numerous times. The ongoing issue is how best to put required Gladue information (R v Gladue, 2 CNLR 252) before the Court for sentencing purposes. The accused wants a full Gladue Report filed, but has no resources for it. He wants the state to pay for this report. Court Services opposes such an order. The position taken is that there is sufficient information through a series of pre-sentence reports [“PSR”] already filed. Further, it is argued there are other means of putting that information before the Court.

At present there are no national standards and there is no national regulator. No formal accreditation is required to do a Gladue Report, as none exists. Section 718.2(e) of the Criminal Code and R v Gladue and R v Ipeelee, [2012] 2 CNLR 218, require that “Gladue information” be considered by any sentencing judge when dealing with an Indigenous offender. There can be no doubt that modern sentencing requires such a consideration. While s 718.2(e) is silent on how the Court may obtain this required information, for the purposes of sentencing, obtainment of this information is a must.

The defence argued that the information in the PSRs was inadequate. It is unclear by whose standards this would be the case. A major flaw in the accused’s argument was that there are absolutely no standards, nationally or even provincially, for the preparation of Gladue Reports or the type of information a court needs, and that requirement is highly fact-dependant. What is required in one case may not be required in another.

There is no basis in the evidence before the Court or in the law that the Gladue information must come to the court in the form of a report. Even if this Court granted the order sought by this offender, an author would not be identified or an amount for fees be decided for such a report. That is subject to negotiations between a potential author and Court Services. To make an order that is so directive to the executive branch of government is to overstep within the judicial branch. The granting of the relief sought herein is exceptional, rare, and done in response to specific and exceptional circumstances where a PSR does not provide the appropriate information and there is no other way to obtain that information and present it to the court. That is not the case here.

R v Vandal, 2020 BCPC 11

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The sentence imposed on the accused, who is of Indigenous heritage, must denounce and deter his and others conduct, as the many offences committed were serious.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused is a 46-year-old Indigenous male with a long-standing drug addiction and has in excess of forty convictions for break and enter and a total of sixty criminal convictions. The court has had the benefit of a Pre-Sentence Report (PSR), a Gladue Report, and to the offender’s credit, he has made repeated efforts to conquer his long standing drug addiction. In addition to accessing Indigenous programming in custody, the accused has established connections with Elders, regularly attends sweats, healing circles and weekly smudges. The Gladue Report summarized his childhood abuse, parental instability, early introduction to drug use and his alienation from his Indigenous background. In mitigation, it is significant that the offender pleaded guilty, which represents some expression of remorse.

However, there are many aggravating factors. His lengthy criminal convictions demonstrates that previous efforts to deter him have been unsuccessful, and his history does not support a finding that he is truly dedicated to his rehabilitation. As well, two of his offences were committed while bound by a recognizance. In the circumstances, the offences combined with his personal circumstances demands a sentence that denounces and deters. A sentence of six years less the time served will adequately denounce and deter while still being proportionate. The sentence imposed will provide an opportunity for the offender to continue with his culinary training while permitting him to engage with Indigenous programs.

 

R v Matchee, 2019 ABCA 251

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There were errors of law present in the sentencing judge’s assessment of the offender’s Gladue factors and moral blameworthiness. The sentence has been reassessed.

Indigenous Law Centre – CaseWatch Blog

Mr. Matchee appealed his seven-year custodial sentence on the basis that the sentencing judge erred by not giving effect to Gladue factors. The sentencing judge’s desire to avoid the appearance of a “race-based discount” was demonstrated by an error of law that Gladue factors do not apply to serious offences – Gladue factors apply to all offences. There was a failure to recognize a connection between the offender’s mother and grandmother’s attendance at residential schools and his current circumstances. In turn, Mr. Matchee’s mother’s substance abuse led to his eventual placement in foster care and abuses suffered there during the first 10 years of his life. The sentencing judge made an error to deny the link. Lastly, the view of any community on what is an appropriate sentence is not an animating principle of sentencing law in Canada – to the extent these comments impacted the sentence, this was an error. Due to these reasons, sentencing must be assessed again.

The harm to society in the undermining of people’s security and safety in their homes, as well as the harm to the victim, is significant in assessing the gravity of the offence. Mr. Matchee had many opportunities to leave but chose not to. He was on probation at the time of the offense and has a long-related record. The pre-sentencing report indicated a failure to take responsibility for his actions or has not taken any positive steps to try to address the underlying issues that have been identified. The factors identified above, in particular the lack of any stable home until 10 years of age, sexual and physical abuse, no meaningful connection with his mother or father, an interrupted connection with his Aboriginal culture, lack of education and employment, diminish his blameworthiness for the current offences.

Taking into account the errors in the application of Gladue factors and the inadequate assessment of Mr. Matchee’s moral blameworthiness, a fit sentence for this offender and these offences is a period of six years incarceration. The other sentences and ancillary orders are unchanged. The net sentence, after the deduction of three years 7.5 months credit for pre-sentence custody, is two years 4.5 months.

 

R v Georgekish, 2019 QCCQ 2341

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After weighing the sentencing principles with information provided by a Pre-Sentence Report and a Gladue Report, it was determined that deterrence and denunciation should heavily shape a fit sentence due to the gravity of the offence.

Indigenous Law Centre – CaseWatch Blog

The offender was intercepted by police on the highway in possession of a large quantity of cocaine she was sent to purchase with money from her sister, before she got back to her home community where she intended to sell it. The offender plead guilty and at the time of the offence, she only had a few prior convictions. She is a member of the Cree Nation and a mother of six children. The Court ordered a Gladue Report to be written in which it was determined that both her parents attended residential schools, and was the victim of years of neglect, violence and abuse. The offender suffered with addictions throughout her life starting at a young age, and she was placed in a youth protection program for multiple years away from her family. She had lost a child the year prior to the offence and had not received any grievance support or services.

The Court considered multiple aggravating factors such as the quantity of drugs the accused had in possession, the nature of the drugs, the risk of reoffending, past convictions, the lack of empathy and to take responsibility, but also the vulnerability of the community where the drugs were to be sold. The Court also considered the mitigating circumstances such as the guilty plea, the offender’s collaboration with the police, the crime being one transaction, and the historical and systemic factors as an Aboriginal offender. With these considerations in mind, the Court sentenced the offender to a 20-month detention sentence and a 3-year supervised probation.