Appeal dismissed. The Appellant’s guilty plea was not accompanied by a joint submission on sentencing, thereby the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than what was sought by the Crown. The sentence was not demonstrably unfit, as the Appellant’s Indigenous heritage was taken into account when assessing aggravating factors.
The Appellant, Mr. Nahanee, who grew up in the Squamish Nation Capilano Reserve in West Vancouver, pleaded guilty to two counts of sexual assault and was sentenced to eight years’ imprisonment. The first count was against SR on one occasion, the second was against EN on many occasions. The sentencing judge ordered a pre-sentence report, a psychiatric assessment, and a Gladue report.
The offences against EN were committed over a long period. EN lived in the care of her grandparents, together with the Appellant, her uncle, between 2010 and 2015. When she first moved into their home, she was 13 years old, and the Appellant was 19 years old. The Appellant repeatedly assaulted her at night, and when she was 14 years old, the assaults escalated with so much frequency she lost track of the number. EN came forward to the police in 2018, after learning that Mr. Nahanee had also assaulted her younger cousin, SR. SR had told her grandmother about past assaults by her uncle, but was not believed by her family.
Gladue factors were considered at length by the trial judge, but did not weigh significantly in sentencing. The Appellant had not endured violence or abuse, and was raised in a safe home. She described the Appellant’s family’s history, and his forebears’ experience in residential schools and their loss of cultural and spiritual connections. She placed significant weight upon the fact the victim and the community in question here were Indigenous, and the victims, as a result, were much more vulnerable to sexual assault than their non-Indigenous counterparts (R v Barton, 2019 SCC 33; R v SPS, 2019 BCPC 158).
The admission made by the Appellant, amounted to an admission that there had been prior, uncharged assaults, the victim had reported them to her grandmother, and she had been disbelieved. Given that the admission was made to assist the court in sentencing following a guilty plea, no other purpose could be served by the admission. It was certainly not an admission that the victim had previously made false reports to her grandmother.
The sentencing judge acknowledged the obligation to consider the Gladue principles in this case, as in every case involving an Indigenous offender. Having done so, it was not an error to consider the extent to which the offender himself was affected by cultural oppression, social inequality and systemic discrimination. Appropriate care was taken in this case to identify Gladue factors and to determine whether they attenuated the Appellant’s moral blameworthiness. It should be borne in mind that the application of the Gladue principles in this case must also have been tempered by consideration of the fact the victims were Indigenous children. The effort at reconciliation that, in part, motivates the Gladue approach to sentencing, is not served by sentences that do not sufficiently deter violence against Indigenous children.