On April 30, 2020 The Saskatchewan Court of Appeal released the judgement of R v JP,[1] in a case where the sentencing trial judge had failed to account for the proven mitigating factors (relating to the accused’s Indigenous background and to the accused’s Fetal Alcohol Spectrum Disorder [FASD]) in favour of “denunciation, deterrence and public protection”.[2] This appeal therefore considered the proper sentencing of an accused who suffers with FASD and whose personal circumstances require application of section 718.2(e) of the Criminal Code and the principles set out in R v Gladue.[3] In result, the Court of Appeal reduced the sentence for two robberies from the original sentence of seven years each, consecutive, to 5 years each, concurrent.[4]

The judgment of the Court of Appeal is highly significant with respect to, at least, the following four points:

1. The recognition of proven FASD as reducing the “degree of responsibility of the offender”;
2. The recognition that Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened” even where a penitentiary term is called for;
3. The presence of the word “rehabilitation” in s 718 as a purpose of sentence should be given a wide definition to include management and supervision in the community in relation to FASD;and
4. That it is not the role of the Gladue report writer to suggest a fit sentence, as such is the province of the sentencing Judge.

At trial the circumstances of JP’s life as they relate to Gladue considerations were provided in detail and a Gladue report was completed, which included detail about his mother’s use of alcohol and drugs while pregnant with him and that she did not know she was pregnant until the seventh month.[5] The Court of Appeal provided the following summary of the Trial Judge’s conclusions regarding FASD and Gladue considerations:

… The judge began his analysis of these matters by stating that he was “satisfied that there are systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province”. He described these as “largely intergenerational” and stated that “[i]t is likely that these systemic and background factors have a bearing on J.P.’s lifestyle and attitude” (at para 87). The judge also said he had “no doubt” as to the accuracy of the diagnosis of FASD, which he said was supported by assessments which were “thorough and complete, including recommendations for intervention” (at para 92)…[6]

It is a finding of fact that JP suffers from FASD and Gladue circumstances which have contributed to JP’s involvement with the criminal justice system. The Court of Appeal analyzed the sentencing principles considered by the Trial Judge and ultimately found that the “The judge did not otherwise determine or consider the extent to which J.P’s level of reduced culpability arising from his FASD and other Gladue consideration should weigh in determining a fit sentence.”[7] However, as quoted above in paragraph 87 of the trial decision, the Trial Judge recognized JP’s reduced moral culpability.[8]

The Court of Appeal’s judgment is authored by Leurer JA and concurred in by Justices Schwann and Kalmakoff. The judgment is like a breath of fresh air in a Province that has often been seen as resistant to confronting the Indigenous over-incarceration epidemic. In doing so, the Court of Appeal builds on the now four-year-old decision of Richards CJS for the Court in R v Chanalquay, 2015 SKCA 141, in attempting to breath real life into the Gladue principles. Those principles have continued to confuse and, in some sense, be resisted by lower court judges. JP, who the sentencing Judge, Elson J of the Saskatchewan Court of Queen’s Bench, convicted after a trial, had been found to have “encouraged and directed” his nephew to commit the two convenience store robberies, had also been introduced himself at a young age to criminality by his step-father. As such, it is easy to see the inter-generational nature of this Indigenous family’s offending.

The sentencing Judge had criticized defence counsel and the Gladue writer for a failure to address the “extent to which the identified systemic and background factors, may or may not, influence” the objectives of denunciation, deterrence and public protection.[9]Justice Leuer relying on R v Okimaw,[10] suggests that Elson J was wrongly seeking for the Gladue factors and the presence of FASD to have “impacted or influenced” the named objectives of sentencing. The Court of Appeal was also of the view that JP’s FASD, which damage occurred to JP’s brain when he was being carried by his then fifteen year old mother, (who was at the time living in a circumstance of “family dysfunction, substance and alcohol abuse and violence”) had a “direct connection” to other systemic and background (Gladue) factors. Indeed, the Court of Appeal found that JP’s FASD was an “intergenerational consequence of residential schools”.[11]

These findings then lead the Court to ask an important rhetorical question: “how can a person who received the different sort of education JP was given by his stepfather not be less morally culpable than someone who was raised in a stable environment uninfluenced by the mentorship of a criminal?”[12] The Court’s point is a good one. If we are looking for examples of reduced moral culpability we have it in JP, without even considering his FASD. To the Court of Appeal his reduced moral culpability is evident and when taken with his FASD the evidence points more directly to JP’s reduced moral culpability.

Before moving to how this should have affected the sentence given, the Court then moves to address FASD directly. A first for this Court, Leurer JA adopts a broader definition of rehabilitation than originally accepted by the sentencing Judge. The Court quotes from R v Friesen,[13] where the Manitoba Court of Appeal accepted that rehabilitation includes “finding a way to control and modify the behavior…”[14] in question. Therefore, finding that FASD is a “life-long” condition does not equate with it not being amenable to rehabilitation (or treatment).  Leuer JA says that “…when the risk of reoffending is reduced through structured support that control, modifies or manages behavior”[15] rehabilitation can be an important aim of a criminal sentence. This is a highly significant step and provides much scope for the use by the criminal courts of recent research into the management of those with FASD as showing pathways to effective rehabilitation. Can FASD researchers, including Dr. Jacquie Pie (and others), have been doing important work on this topic.[16] Indeed, when one stops to think about the issue it is clear that many conditions are in fact life-long and yet can be subjected to effective “treatment” that can lessen their adverse effects (including diabetes, for example).

Lastly, the Court of Appeal is very clear in their judgment in JP that when an offence requires a penitentiary sentence it remains significant to consider Gladue factors when arriving at the precise sentence that is to be imposed. The Court focuses on the principle of proportionality [in s.718.1] as requiring the sentencing judge to “put into the balance” the “impact …systemic and background factors have on an individual’s moral blameworthiness.”[17] Therefore, “A combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of consideration of the proportionality principle”[18] which “must be accounted for when determining a proportionate sentence.”[19] This, of course, is highly significant as one often gets the impression that sentencing judges are giving only lip service to Gladue principles. Leurer JA is clear that such factors must be “weighed when fixing a proportionate sentence”[20]. The Court is critical of the Crown’s argument that Gladue has less effect where the primary goal identified in the case law is deterrence as s718.2(e), (citing Gladue itself at para 44), “has a remedial purpose for all offenders… [with] a particular remedial role for aboriginal peoples.”[21] In a case involving FASD, the Judge must look for evidence as to whether the accused’s moral culpability is reduced by their FASD. Further, Gladue factors that reduce moral culpability remain in play when determining the ultimate sentence relying on R v Jensen [22]. In the end, the Court finds that the factors that reduce JP’s culpability were on the facts of the case “overwhelming” and “cannot be credibly denied”[23] and the Judge erred in principle by failing to account for those factors in setting the sentence.

It seems that courts continue to adapt their application of Gladue in order to fulfill the intended purpose of the Supreme Court of Canada’s interpretation of section 718.2(e) of the Criminal Code. Part of this picture is answered by this decision. It cannot be clearer: in Saskatchewan either proven FASD or significant Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened. JP is a disabled person whose life circumstances are a consequence of colonial trauma and learned criminality. He will spend the next five years in a federal penitentiary. How are those five years of separation from society going to assist in supporting him in ways that recognize both his disability and his strengths and thus his future risk? One of the foundational statements from the Supreme Court in Gladue is that prison and the justice system in general is not working for Indigenous peoples [24]. While the search for the right balance of the proportionality equation is necessary, it is also important to remember that it is only through the creation of alternatives to incarceration, through the creation of Indigenous justice programs and the continued and increased reliance on organizations such as the FASD Network, that will we really make significant change to the lives of people involved in criminality, while making our society safer. Until then Indigenous people are being sent to prisons that won’t rehabilitate them. What kind of a society do we want to live in? One in which says it is making us safer or one that is actually safe?

Read R v JP, 2020 SKCA 52 on CanLii

About the contributors: 

Glen Luther: “Professor Luther joined the faculty of the College of Law, University of Saskatchewan in 2003, having previously held teaching positions at Osgoode Hall Law School, Victoria University in Wellington, New Zealand, and the University of Calgary. He has extensive practice experience as a criminal lawyer, having practiced in Lloydminster (his hometown) from 1981-1984 and Calgary, Alberta from 1989-2003. He has argued cases throughout Alberta and Saskatchewan at all levels of courts including the Supreme Court of Canada. Currently his practice is limited to consulting with other counsel and assisting them in the presentation of cases before the courts.”

Hilary Peterson: “Sessional lecturer and lawyer, Ms. Peterson teaches at the College of Law, specifically the seminars Youth Criminal Justice and the Indigenous People and the Criminal Justice System.” 

Citations:

[1] 2020 SKCA 52 [JP].

[2] Ibid, para 89.

[3] [1999] 1 SCR 688, [Gladue].

[4] At trial the accused was sentenced on a number of offences for a total global sentence of 17 years, which was reduced, based on the totality principle, to 10 years. The Appellate Court dealt predominately with the issue of sentence for two robbery convictions. The original sentence for the two robberies was seven years’ imprisonment, running consecutively, although the Trial Judge reduced the overall sentence of 17 years he would have imposed to 10 years based on the totality principle, [para 86] The Appellate Court modified the sentence for the two robberies to five years to run concurrently; resulting in a global sentence of eight years less time served on remand, [para 3].

[5] JP, supra note 1, see paras 9-15.

[6] Ibid, at para 21. [emphasis added]

[7]  Ibid, at para 38.

[8] Ibid at para 46.

[9] Ibid at para 89.

[10] 2016 ABCA 246, at para 76.

[11] JP, supra note 1, at para 45.

[12] Ibid, at para 47, [emphasis in original].

[13] 2016 MBCA 50.

[14] JP, supra note 1, at para 58.

[15] Ibid, at para 61.

[16] See for example: Pei J et al, “Interventions for Fetal Alcohol Spectrum Disorder: Meeting Needs Across the Lifespan” (2016) 3 Int. J. Neurorehabilitation 1 and www.canfasd.ca.

[17] JP, supra note 1, at para 63.

[18] Ibid, at para 65.

[19] Ibid, at para 66.

[20] Ibid, at para 66.

[21] Ibid, at para 67.

[22] 74 OR (3d) 561 (2005) (CA).

[23] JP, supra note 1, at para 73.

[24] Gladue, supra note 3, at paras 64 and 65.