Appeal allowed and an indeterminate sentence is imposed. The sentencing judge erred in law. It was not open to her to exempt an Indigenous transgendered offender from the operation of the dangerous offender provisions of the Criminal Code.
In this matter, the Crown appeals the determinate sentence imposed on the respondent, a transgendered person from the Blood Tribe, born Josiah Jerome Blackplume and now known as Lucy Blackplume. Ms. Blackplume was 29 years of age at the time of sentencing and most likely suffers from Fetal Alcohol Spectrum Disorder. She cannot understand the impact of her decisions, exercise self-control, or filter impulses. This cognitive deficit will be lifelong, and she requires a high level of in-the-moment support. She displays features of antisocial personality disorder, borderline personality disorder, narcissistic personality disorder, and psychopathy. Ms. Blackplume’s childhood was traumatic and dysfunctional and she virtually has no work experience.
At the dangerous offender hearing, Ms. Blackplume pleaded guilty to sexual assault with a weapon and assault causing bodily harm. Other convictions include attempted sexual assault with a weapon, sexual assault, fraud over $5,000, and assault causing bodily harm. As a result of her convictions, Ms Blackplume has spent almost 12 years in institutions with notable periods in segregation, isolation or observation because of anxiety, depressed mood or suicidal ideation, gestures, threats or attempts, and because she has been assaultive or sexually inappropriate with other inmates, or found trafficking her own stockpiled medications.
Ms Blackplume met the criteria for a dangerous offender and for an indeterminate sentence. The sentencing judge acknowledged that an indeterminate sentence would have been imposed, but for her finding that in Ms Blackplume’s circumstances such a sentence would constitute cruel and unusual punishment in violation of her s 12 Charter right (R v Boutilier, 2017 SCC 64 [“Boutilier”]). The sentencing judge also reviewed Gladue factors. In her view, correctional institutions have failed to develop humane secure housing and treatment for Indigenous and mentally ill offenders (R v CPS, 2006 SKCA 78). The sentencing judge endorsed the perspective that offenders such as Ms Blackplume are more appropriately treated from a mental health rather than correctional perspective (Ewert v Canada, 2018 SCC 30). Based on these factors, the sentencing judge concluded that an indeterminate sentence would amount to a life sentence for Ms Blackplume.
Under sections 753(4) and (4.1), a court sentencing a dangerous offender shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender or a serious personal injury offence. Despite the finding that Ms. Blackplume is a dangerous offender, the sentencing judge imposed a determinate sentence of 10 years for sexual assault with a weapon and six years for assault causing bodily harm to be served concurrently, followed by a 10-year long term supervision order. She did so as a remedy for breach of Ms Blackplume’s right to be free from cruel and unusual punishment as guaranteed by section 12 of the Charter (R v Blackplume, 2019 ABPC 273 [“Blackplume“]).
In Boutilier, the Supreme Court of Canada held that the prospect of indeterminate detention, as provided for by section 753(4.1), does not lead to a grossly disproportionate sentence contrary to section 12 of the Charter. It is part of a broad scheme for imposing a fit sentence. The subsection applies to a narrow group of offenders who are dangerous per se. For those who cannot be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence, a sentence of indeterminate detention is to be imposed. The effect of the sentencing judge’s decision was to grant Ms Blackplume a constitutional exemption from the operation of section 753(4.1).
The facts of this case do not present meaningfully “different circumstances” or “different reasonable applications” than those considered in Boutilier and preceding cases. Beyond Ms Blackplume’s circumstances, the sentencing judge explained that she reduced the sentence as an incentive to the Correctional Service of Canada to develop “humane housing and treatment” and “humane secure facilities” (Blackplume). This rationale does not relate to proportionality or any other sentencing objective and was therefore an irrelevant factor. The sentencing judge erred in relying on it.
An appellate court may sentence afresh where an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor had an impact on the sentence (R v Lacasse, 2015 SCC 64). The sentencing judge erred in law in finding a Charter breach and in using that finding to reduce the sentence and in relying on an irrelevant objective. This Court therefore must sentence afresh. Ms Blackplume’s characteristics do not outweigh the statutory interest in public protection. An offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are considerations relevant to deciding whether or not a lesser sentence would sufficiently protect the public. Therefore an indeterminate sentence must be imposed.