R v Blackplume, 2021 ABCA 2

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.

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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.

R v Kandhai, 2020 ONSC 3580

The Court sentenced a Black offender to 49 total months for possession of a prohibited firearm with accessible ammunition and for breach of a firearms prohibition order. The Court took into account a detailed history report which considered his life circumstances including growing up in poverty and experiencing anti-Black racism from a young age. The Supreme Court of Canada’s invaluable guidance in this area, albeit in the context of Aboriginal offenders, informed the sentence.

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Mr. Jeremy Kandhai has a long criminal record for a 25-year-old man. The first circumstance identified in a pre-sentence report was that Mr. Kandhai grew up in low income, subsidized housing. The second circumstance was that anti-Black harassment and constant police presence continued throughout his childhood. The report further suggested that he was engaging, self-aware and took accountability for his actions. The principle argument for a reduction of the sentence normally imposed for these crimes is premised on Mr. Kandhai having a lower degree of responsibility as a result of the poverty, discrimination and anti-Black racism he has endured over his lifetime.

The Court relied on systemic factors and rehabilitation as key importance. The sum total of influences upon an individual, including poverty and racial bias, has helped form the person who committed the crime (R v Gabriel, 2017 NSSC 90). Aboriginal offenders are specifically mentioned in Section 718.2(e) of the Criminal Code, the provision commanding that incarceration must be used with restraint. The Court nonetheless confirmed that at its root, like Aboriginal discrimination, anti-Black racism and poverty is first and foremost a societal problem.

The question of the impact of past discrimination and disadvantage ought to be viewed as a matter of context, not one requiring proof of direct causation. He was not compelled to make the choice he did, but his alternatives were circumscribed by his environment and the dearth of opportunities that were open to him. Mr. Kandhai’s moral responsibility ought to be weighed in light of the gravity of the offence.

However, the potential for human carnage represented by a loaded handgun is extreme. His fear of being victimized together with the violent deaths of people around him were a factor in arming himself. It is well established that denunciation and deterrence are the paramount sentencing principles for these offences (R v Graham, 2018 ONSC 6817). Mr. Kandhai understood that it was not necessary to arm himself with a loaded handgun and that it was a poor choice. The prospect of the offender being rehabilitated is better than his offence or his criminal record would indicate. The Court sentenced Mr. Kandhai to 49 months total which includes all credit due. 38 months was attributed to the firearms offence and 11 consecutive months was contributed for the firearms prohibition breach.

R c Adams, 2020 QCCQ 9127

An 11 month consecutive sentence is reasonable for an Indigenous accused, who is serving a sentence for unrelated offences. He shall, for the next 2 years, respect conditions in a probation order, and is prohibited from operating any motor vehicle in Canada for a period of 5 years.

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The accused, Mr. Adams, is a 36 years old Indigenous male registered as a member of the Mohawks of Akwesasne. In 2011, he was spotted by police operating a motor vehicle while disqualified, but decided to flee the police officers. He pleaded guilty to charges of flight from police, of driving while disqualified and of breaching a valid recognizance binding him not to drive any motor vehicle. Subsequently in the same year, the accused stole his grandmother’s vehicle and was later involved in an accident. He pleaded guilty to charges of vehicle theft, driving while disqualified, and one count of breaching his recognizance by operating a motor vehicle while he was bound not to.

In 2019, the accused was spotted operating a boat full of bags containing tobacco. The accused was enroute to offload the cargo, but the RCMP marine patrol blocked him, whereby the accused rammed the RCMP vessel, capsizing his own boat. He pleaded guilty to charges of possession of unstamped tobacco and obstructing police officers. The last event happened in 2020. Police observed and tried to intercept two snowmobiles with sleds they thought were transporting illegal tobacco. One of the snowmobiles rammed the police while the other, operated by the accused, got away. The accused was charged and pleaded guilty to the possession of this unstamped tobacco, as well as to charges of breaching his recognizance for not showing up in Court, and for possessing illegal tobacco while it was prohibited by the recognizance. The accused is charged by both the provincial and federal Crown. The provincial crown is prosecuting for the 2011 events, while the federal crown is prosecuting for the 2019 and 2020 events.

Further investigation revealed he did not spent the 8 year period avoiding the law while staying out of trouble. He was in fact detained in the United States for an offence of conspiracy to possess with intent to distribute and distribution of controlled substances committed in 2012. In coming to Canada and in committing the 2019 and 2020 crimes, he breached his supervision order.

According to the Gladue report issued, as a child Mr. Adams experienced different forms of abuse and neglect, abandonment, lower level of education, and the normalizing of substance abuse and smuggling. He also endured separate traumatic events that included the death of his father and a very close uncle. As an adult, he has been living in a hopeless state of mind, dealing with a dependence on alcohol and drugs and is currently incarcerated. Mr. Adams has two children he has not been present to see grow up, because of time spent in jail since their birth. The only mitigating factor for Mr. Adams, however, seems to be the plea of guilt. The quantities seized in each file of unstamped tobacco is important (1274 kg in the 1st file, and 773 kg in the second file). Both these crimes were committed recently, after being released from the United States.

Considering the priors convictions, the gravity of these offences, the need for deterrence, the passage of time, the Court finds a lower sentence would be unreasonable, given the accused is not to this day rehabilitated, as can be seen from the facts in the smuggling files. Because the 2011 events have nothing to do with the 2019-2020 events, these sentences need to be served consecutively. The 11 month sentence should be served consecutively to the sentence being currently served.

R v Ingram, 2020 BCPC 168

The Court concluded that the joint submission put forth by counsel is appropriate given the unique circumstances of the Indigenous offender who committed intimate partner violence against his late Indigenous partner. The sentence imposed is 60 days’ new jail to be served in the community in the form of a conditional sentence with conditions, followed by a 12 months probationary term.

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Mr. Ingram has admitted, through his guilty plea, that he assaulted his intimate partner contrary to s 266 of the Criminal Code. Counsel gave a joint submission on sentence, in which the Court may only depart if the proposed sentence would bring the administration of justice into disrepute or if the proposed sentence is otherwise contrary to the public interest (R v Anthony Cook, 2016 SCC 43). The Court must also consider what impact, if any, the COVID 19 pandemic has had on the sentencing process (R v Stevens, 2020 BCPC 104).

Mr. Ingram got into an altercation with Ms. Ryan and the police were called. During the course of that altercation, Mr. Ingram would not allow Ms. Ryan to leave. He pushed Ms. Ryan and then bit her on the face. The police arrived soon thereafter and took a statement from Ms. Ryan. They saw physical swelling to her face where she had been bitten. Ultimately charges were approved and a warrant was issued for the arrest of Mr. Ingram. Ms. Ryan, did not deserve what happened to her and needs to be recognized for the vulnerable person that she was. Ms. Ryan, has passed, having died of a drug overdose. She was a First Nations woman. It is often difficult to reconcile the reality of giving meaning to the principles of sentencing applicable to Aboriginal offenders when the victim, as per s 718.201 of the Criminal Code, is herself an Aboriginal female victim.

Mr. Ingram is a member of the Haida Nation, identifying with the Old Masset Band. When it comes to Gladue factors, Mr. Ingram’s parents are residential school survivors. The ill effects that have followed down through the years have resulted in him accumulating a seven page criminal record at the age of 47. Mr. Ingram has some 11 convictions for breach of undertaking or recognizances of bail and some 12 convictions for breach of probation, four assaults with a weapon, one assault causing bodily harm, and six uttering threats. Many of the convictions are designated as K files, which in British Columbia is a designation that the offence involves domestic violence, now more commonly known as intimate partner violence. However, Mr. Ingram has accumulated zero breaches since the offence date while being on very strict bail conditions, including a curfew. It has included Mr. Ingram becoming, perhaps for the first time in his adult life, a sober and drug free individual who has sought out and taken counselling.

Law Society of Ontario v Bogue, 2020 ONLSTA 11

An Indigenous lawyer from Ontario brought two motions seeking various relief, the majority related to issues considered and rejected in other proceedings. The lawyer was disrespectful and issued threats of legal proceedings against the panel. Though the lawyer did raise three new issues, the motions are dismissed, but without prejudice to bringing these motions again. If he does proceed with his motions, he would have to file the necessary materials, conduct himself in a civil manner, and pursue only matters that had not already been determined.

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Gina Papageorgiou Spirit Warrior [“Lawyer”] is an Ontario lawyer who identifies as non-status Métis and as a member of the Kinakwii Nation/Confederacy. The Lawyer has been before the Law Society Tribunal [“Tribunal”] in a number of motions related to his capacity and his competence. In this matter, he brought two motions seeking 10 heads of relief. His motions were dismissed without prejudice to his bringing these motions again, upon the filing of proper materials. The Lawyer did not file a motion record, factum or book of authorities as required by Rule 8.2 of the Tribunal’s Rules of Practice and Procedure [“Rules”].

At the outset of the motions hearing, it was advised that it was not possible to consider his motions without the required materials. The Lawyer refused to follow instructions so that a schedule could be established for the exchange of materials to allow his motions to be heard on their merits. This is an abuse of the Tribunal’s process. Parties before tribunals are expected to conduct themselves with courtesy and respect (Cameron v Ontario (Training, Colleges and Universities), 2011 HRTO 2240). The Lawyer’s attempt to re-litigate matters already raised, determined against him and under appeal is an abuse of process. He addressed the participants in a disrespectful manner and issued threats.

The Lawyer’s threat that the adjudicator would become a personal defendant before the International Court of Justice if there is no agreement to his demands was an abuse of process. Although the Lawyer was representing himself, the Rules of Professional Conduct still apply, which specifically prohibits lawyers from threatening legal proceedings to achieve a quid pro quo. Like previous panels in this matter, the Tribunal acknowledges the historical mistreatment of Indigenous People in Canada and the need for reconciliation. The fact of this history, however, does not mean that the Tribunal lacks jurisdiction, that its panel members are automatically biased or that there has been any attempt in these proceedings to be disrespectful or cause cultural genocide.

If there is respectful conduct and compliance with the Rules, he could complete his appeal materials and pursue his appeals on their merits. The items in his motions which are new are: 1) his request for an order to consolidate the two appeals. His last motion in this regard was dismissed because the capacity proceedings were not yet concluded, but they are now and so this request can be made again; 2) an order for relief from compliance with the Rules regarding transcripts in respect of the capacity appeal. His request for relief from compliance with the Rules regarding his competence appeal was dismissed, but has not yet been adjudicated with respect to the capacity appeal; and 3) an order that the Law Society of Ontario [“LSO”] pay for a lawyer for the Lawyer for his appeals and his motion for relief from compliance with the Rules.

This is an interesting motion raised by the Lawyer, who says that having found that he is incapacitated, the LSO cannot then expect the Lawyer to act for himself in his appeals (Law Society of Ontario v Burtt, 2018 ONLSTH 63). The Lawyer did not provide any evidence as to what attempts he has made to retain a lawyer, what circumstances prevent him from doing so or any information as to whether he has sought assistance from volunteer duty counsel. For greater clarity, until the Lawyer files the required materials, no hearing or management conferences should be scheduled.

R v BTL, 2020 BCPC 185

The Court imposed a custodial sentence on a young Indigenous first time offender that sexually assaulted his young cousin. A 90-day custody and supervision order served concurrent with a two-year intensive support and supervision program is determined to be best suited to promote his rehabilitation and is in harmony with all the Youth Criminal Justice Act’s principles and purpose.

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An Indigenous youth, BTL, at the age of 14, invited his then 13 year old cousin, SP over to his residence for a visit where he forced unprotected sexual intercourse on her. SP disclosed the assault to her mother who then reported it to police. BTL claimed that he had no memory of the event but his DNA was found in the victim’s underwear. He subsequently pleaded guilty to the offence of sexual assault.

BTL is now 16 years old. He is Carrier and a registered status member of a First Nation. His Pre-Sentence Report described the adverse impact of colonization on the Carrier people and his Nation, that included the legacy of residential schools, child apprehension, poverty, poor health, unemployment and substance abuse. BTL experienced a difficult and chaotic childhood rife with domestic violence, drug and alcohol misuse, criminality, instability and dysfunction. The Ministry of Child and Family Development became involved with BTL’s family due to violence, alcohol and drug intoxication, neglect and parental inability to care for the children.

BTL has a number of developmental, cognitive and psychological issues as a result of his prenatal exposure to alcohol and unstable childhood. He suffers from unspecified seizures and displayed extreme behavioural issues in school, leaving without completing Grade 8. Presently, he lives an empty, solitary life at home devoid of any community, prosocial or cultural activity and has succumbed to intergenerational substance misuse. He has no prior criminal record, however, he does have a poor history of reporting to his Youth Worker and attending appointments. As is his right, BTL refuses to discuss with anyone the circumstances of the offence.

The Youth Criminal Justice Act [“YCJA”] provides a detailed sentencing regime governing the sentencing of youth offenders. The focus of sentencing under the YCJA is balancing conflicting principles to arrive at a sentence tailored to the individual circumstances (R v Okemow, 2017 MBCA 59). Sentencing youth pursuant to the YCJA is a context-specific approach unlike the sentencing regime for adult offenders set out in s 718 of the Criminal Code. The YCJA places mandatory restrictions on the use of custodial sentences. The Court concludes, however, that the serious and violent nature of the offence BTL committed against SP precludes them from imposing an alternative to a custodial sentence.

R v TK, 2020 SKQB 262

The Court allowed an Indigenous youth’s application for judicial interim release pending trial for first-degree murder. The Court accepted that the Gladue principles were relevant to his application for bail under the Youth Criminal Justice Act, SC 2002, c 1, particularly as they pertain to the secondary and tertiary grounds. The strength of the Crown’s case was not strong, the youth would be in pre-trial detention for a considerable length of time before trial, and a release plan with extensive conditions was proposed by defence counsel. 

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 T.K. is a 16-year-old male who stands charged with first-degree murder in the death of D.D. contrary to s 235 of the Criminal Code. He attended a house party in Regina, Saskatchewan in which it is alleged he brought the suspected murder weapon, a machete. An altercation broke out, and when police were called the next day, D.D. was found dead in the house from severe lacerations to his skull, similar to what would be from a machete. T.K. is one of four young persons charged with first-degree murder in D.D.’s death. Two adults also face first-degree murder charges in respect of his death. Counsel for the Crown served notice that it will be seeking an adult sentence in the event T.K. is convicted of this alleged crime, in which he has elected to be tried by a judge and jury.

T.K. has applied for judicial interim release pending his trial pursuant to s 28 of the Youth Criminal Justice Act [“YCJA”]. He asks that he be allowed to reside with his mother at her home in Regina pending his trial on the murder charge. The YCJA commends judges to release young persons from detention pending trial, even in cases where the young person is charged with an extremely serious criminal offence for which the Crown will be seeking an adult sentence upon conviction.

T.K. is an Indigenous person of Cree descent. Consequently, Gladue factors are relevant and must be taken into consideration on this bail application (R v Gladue, [1999] 1 SCR 688 [“Gladue”]). T.K. had been in the care of the Ministry of Social Services from age 11 to 15. T.K.’s youth record is lengthy, commencing when he was only 14 years of age. At present, T.K. is detained at the Paul Dojack Youth Centre [PDYC], where he has Level 4 status. This status offers T.K. the greatest flexibility at that centre. T.K. is actively pursuing his Grade 10 education and is apparently doing well in his studies. He proposes to continue with his education if he is released. The Crown has not proved on a balance of probabilities that if released from PDYC, there is a “substantial likelihood” T.K. will commit a serious offence.

The Court analysed the strength of the Crown’s case against T.K. on first-degree murder. It is not strong. Apart from T.K. being present at the scene, there is no evidence currently which physically links T.K. to the commission of the offence or to its aftermath. If T.K.’s detention continues, he will be detained for a considerable length of time before he is tried on this offence. No preliminary inquiry has yet taken place, and none is scheduled until March or April 2021, at the earliest, approximately one year after the date of the offence. Once it is concluded, and if T.K. is committed to stand trial on this offence, it will be many more months before his trial would commence.

Taking all considerations into account and mindful that T.K. is a young person, his detention pending trial should be the very last resort and ordered only where no other alternative is available. The Court is satisfied that his application for judicial interim release should be granted and orders that T.K. be released from the PDYC with terms and conditions.

R v Reddick, 2020 ONCA 786

Appeal dismissed. There is no error on the sentencing judge’s imposed sentence of an Indigenous offender who committed a robbery with an imitation firearm. Gladue principles was given appropriate consideration, along with hardships arising from the Covid-19 pandemic related lockdowns in determining a fit sentence.

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Mr. Chad Reddick entered a guilty plea to robbery and using an imitation firearm while committing an indictable offence. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record. The sentencing judge imposed a two-year sentence for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. The sentencing judge also granted the Crown a 12-month non-reporting probation order.

Mr. Reddick appeals the sentence imposed, claiming that the sentencing judge erred in applying Gladue principles and failed to pay attention to the sentencing objective of rehabilitation. He argued that there has been a change in the law that makes a conditional sentence possible for the robbery conviction, and that there has been a high frequency of lockdowns Mr. Reddick has experienced related to the Covid-19 pandemic since the sentence was imposed (R v Sharma, 2020 ONCA 478 [“Sharma”]).

Mr. Reddick is remorseful and has commited to change, however, his appeal is dismissed. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because he and his family members lacked specific information about his Aboriginal ancestry, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s 718.2(e). She applied the Gladue principles appropriately and sensitively, as well as considered rehabilitation.

Even if this Court was to accept that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, there is no error by the sentencing judge that would permit resentencing Mr. Reddick using this “new” sentencing tool. As well, pursuant to s 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. Despite hardship arising from lockdowns which can qualify as a collateral consequence that warrants consideration during sentencing (R v Morgan, 2020 ONCA 279), the sentencing judge already took the current Covid-19 pandemic into account on the hardship of the sentence imposed. The Court is not satisfied on the evidence that circumstances have changed to the point where additional credit should be given.

R c Kanatewat, 2020 QCCQ 3293

A jail sentence is warranted for the offender who committed a sexual assault on the victim after entering a private residence. Gladue factors were considered, along with other competing sentencing principles, in crafting a restorative sentence that includes probation and community service.

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In 2019, Mr. Kevin Kanatewat, the offender, entered very early in the morning the residence rented by the victim, a male of 30 years old, and sexually assaulted him. The attack lasted approximately one hour and was for the victim intimidating, intrusive, humiliating and a painful experience. The offender was found guilty of sexual assault committed on the victim under s 271 a) of the Criminal Code; two counts of breach of his conditions under s 145; resisting or wilfully obstructing a peace officer in the execution of his duty, s 129 a); and with assaulting a peace officer engaged in the execution of his duties, 270 (1) a). The offender pleaded guilty to failing to comply with a conditions of an undertaking not to drink alcoholic beverages and to not completing all of the 150 hours of community work services he had to execute on a probation.

The Presentence Report mentioned a number of Gladue factors, including an upbringing marked by negligence and violence induced by consumption problems. The offender ceased school in Grade 9 and did not return to any scholastic or vocational program. He has an unstable history of employment where he worked various jobs, some which he lost or quit because of his consumption difficulties. The offender suffers from drug and alcohol abuse but would not participate in any services offered in the correctional facility, nor has he made any therapy demands. There are a number of priors regarding breaches and offenses against persons where the offender got short sentences of jail, generally suspended sentences and probations and even community work. The offender has a low level of maturity and a mitigated sense of responsibility with an elastic capacity for empathy.

This intrusive and forceful sexual assault has seriously harmed the victim, a pharmacy technician, as he suffered a very humiliating and destructive harm on his sense of dignity and security. The subjective gravity of the sexual assault warrants a sentence of jail that symbolizes strong denunciation and deterrence but also calls for weighing appropriately the historic and systemic community background factors as well as the personal background factors in a restorative and individualized fit sentence. This sentence has to be proportionate without trivializing or condoning the violent course of behavior.

The offender’s risk of reoffending is considered high, but could be reduced through the healing process under judicial surveillance. The Court is of the opinion that a sentence of imprisonment of 18 months would be a fit sentence, and probation of 24 months with a long healing and compelling process, along with 240 hours of community work to be performed. The probation and the community work are more likely to get the offender on the right track after a significant term of jail and an involvement in the healing programs.

R v SR, 2020 BCPC 227

The Court considered the frequency of sexual abuse perpetrated by a father of a child that took place over the course of a year in 1982. From balancing of the competing sentencing principles and objectives, a period of jail is warranted as the daughter’s emotional, spiritual and physical integrity has been scarred through her lifetime. The father is sentenced to a period of one year jail, without probation after a pre-sentence report and Gladue factors were also considered.

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Over a number of months in 1982, S.R. did indecently assault his daughter J.R. contrary to s 149 of the Criminal Code. The charge is dated, as the offence took place 38 years ago when S.R. was 28 years old and J.R. was 6 years old. She is now 43 years old. In 2018, J.R. reported to the police that her father sexually abused her. The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty in 2019. S.R. does not remember any specifics of the sexual abuse but does not deny any of the acts, and told the Court he was drinking alcohol excessively during this time of his life.

Of particular importance in this case is the provision of s 718.01 which deals with offences against children. The Court gives primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established (R v D(D), 2002 CanLII 44915 (ONCA); R v Woodward, 2011 ONCA 610 (CanLII)). The harm is enduring, intergenerational, and well recognized. J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexually abused than if she were not Indigenous.

S.R. is now a 65 year old First Nations’ man. S.R. states he and his cousins witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions. S.R. saw this so often he states he believed this to be normal behaviour. He was six years old when he was exposed to sexual behaviour and pornographic images. As for alcohol, he spoke of the normalization of excessive alcohol consumption. He grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.

When she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. However, the social worker that became involved was S.R.’s sister-in-law and turned to S.R.’s oldest brother for advice. Subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement. The Court would have welcomed input from Elders as to what the ‘traditional way’ meant. Without a better cultural understanding, the approach taken might leave one with the impression that the issue was simply ‘swept under the rug.’

As for Indigenous background, many of S.R.’s family members went to residential school where they were physically, emotionally and sexually abused. The Court acknowledges the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system. As the Gladue report confirmed, the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without anyone’s knowledge.

Despite the cultural cuts that residential schools scarred his community with, S.R. is involved with cultural practices such as singing, drumming and other cultural events, including language classes. There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options in the community. There is also a Men’s Group that is offered to men who have sexually offended and cultural healing retreats. The Court hopes S.R. can use his position as an Elder in his community and work with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.