AC and JF v Alberta, 2021 ABCA 24

In an appeal regarding an interim injunction that stayed the implementation of amendments made to the Child Youth and Family Enhancement Act that prevented an Indigenous woman to access financial support to help her transition from government care into adulthood. The appellate court found that the chambers judge failed to consider a number of important factors and failed to give adequate weight to the public interest in weighing the balance of convenience. As a result, the appellate court allowed for the appeal and has set aside the injunction.

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There are two applicants within this case – A.C. and J.F., however the applicant J.F. did not file any evidence, and therefore the application was only advanced by the respondent A.C.. A.C. is a 22 year old Indigenous woman whose traumatic childhood resulted in her being in government care since the age of 12. When she turned 18, she became eligible to participate in Alberta’s Support Financial Assistance program [“SFA”], which provided her with transitional social and financial support that, under prescribed circumstances, and could continue until the age of 24. The purpose of the program was to facilitate the transition from childhood to adulthood for children in long term care who, as a result of those circumstances, lack the emotional and financial support to smooth the transition. In 2019, Alberta announced an amendment to the SFA program, reducing the maximum age for SFA assistance from 24 to 22.

A.C. argues that the effect of this sudden and unexpected withdrawal of social and financial support had an incredibly negative effect on her. She challenged the constitutionality of the legislative amendment and the manner which it was carried out, asserting that it breached her section 7 right to life, liberty and security of the person, and her section 12 right to be free from cruel and unusual treatment. She sought out and obtained an interlocutory injunction, which would stay the implementation of the proposed changes pending the full hearing of her Charter challenge. This case deals with Alberta’s appeal of this injunction.

At issue in this appeal is whether or not the respondent met the test for an interlocutory injunction restraining the implementation of this legislation. The decision to grant an interlocutory injunction is a discretionary exercise, with which a tri-parte test should be applied (RJR-MacDonald Inc v Canada (Attorney General), 1994 1 SCR 311). The first step to consider in the test for an interlocutory injunction is whether the applicant has identified a serious question to be tried. The chambers judge found serious questions justifying the interlocutory injunction on three heads: a) infringement of A.C.’s right to security of the person contrary to s. 7 of the Charter; b) cruel or unusual treatment of A.C. contrary to s.12 of the Charter; and c) breach of a fiduciary duty owed by the government to A.C. as a recipient of public support. The appellate court found that the chambers judge erred in identifying the right or freedom in each of these instances and in finding an arguable case that the state action caused or constituted a breach of the right or freedom in question. As a result, the appellate court concluded that the first part of this test was not met.

Since the respondent was unable to meet the first part of the test, it is not strictly necessary to consider the following steps of the analysis which pertain to irreparable harm and the balance of convivence. However, the appellate court considered these steps regardless. With regard to finding irreparable harm, the Court concluded that it was not clear that the respondent proved any potential harm arising from the amendment, much less irreparable harm. With regard to the balance of convenience, the appellate court found that it weighed in favor of dismissing the application for an interlocutory injunction on the basis that the amendment to the legislation was enacted in the public interest. The appellate court concluded their decision by allowing the appeal and determining that interlocutory relief should not have been granted.

R v Herman, 2021 YKTC 12

An Indigenous offender is sentenced to conditional custody to be served in the community with support from the John Howard Society, followed by probation. Although convicted of a sexual assault on an Indigenous woman, a rehabilitative approach is considered appropriate in the overall balancing of the principles of sentencing, which included the accused’s significant Gladue factors.

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Mr. Claude Herman, a 42 year old man and member of the Chipewyan First Nation, was convicted of sexual assault on an Indigenous victim. Mr. Herman groped the woman, while in a highly intoxicated state. This offence occurred within the larger backdrop of the victimization of Indigenous women in Canada. This same backdrop of systemic and individualized factors was also considered in the sentencing as he is an Indigenous offender (R v Gladue, [1998] 1 SCR 688).

Mr. Herman does have a criminal record with two prior convictions for assaults, but also has significant Gladue factors. He has limited education and has had trouble with domestic violence in his common-law relationship. However, he has participated in rehabilitative programming and has avoided trouble during his incarceration. He does have remorse for his actions. Mr. Herman’s substance abuse and associated violent behaviour cannot be dissociated from the Gladue considerations.

If Mr. Herman is able to comply with the rules and requirements of residency at the John Howard Society, then there is a benefit to society in the reduction of the longer-term risk he poses, through his rehabilitation. The Court is satisfied that the victim is not at a risk of harm by Mr. Herman. There is no indication that Mr. Herman poses any significant risk of committing further sexual offences against women. The safety of the community is not endangered by allowing Mr. Herman to serve his sentence in the community, with residency at the John Howard Society and compliance with its rules and requirements as the foundation for the order.

The Court is satisfied that a fit sentence for Mr. Herman is a period of custody to be served conditionally in the community for a period of six months. Mr. Herman will be placed on a probation order for a period of one year with terms, along with a $100 victim surcharge.

R v Bennett, 2021 NLSC 26

A first time Inuit offender, who maintains his innocence, was convicted of sexual assault involving forced anal intercourse with an Indigenous victim. The Court determined that a further 90 days imprisonment and 18 months supervised probation with ancillary orders was fit in the circumstances.

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Mr. Bennett, an Inuit man, was convicted of sexual assault against the complainant contrary to s 271 (1) of the Criminal Code (R v Bennett, 2020 NLSC 147). In 2017, the accused and complainant consensually engaged in sexual intercourse after meeting in a bar and both were heavily intoxicated. After an attempt at anal intercourse, the complainant protested, and the accused acquiesced. However, he attempted again and forced anal intercourse against her will and firm protestations. The complainant subsequently called the police. Upon seeking medical observation, and because she was still inebriated, she gave a formal statement regarding the sexual assault in the following days. The accused has denied any guilt, although he testified he had no recall of the events.

Her explicit communication during their sexual activity, that the accused did not have consent for anal intercourse, did not prevent her from being physically restrained by the accused who forced himself on her anyways. Women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact. All individuals are entitled to have their personal and sexual integrity respected. This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact.

The accused has Gladue factors to be considered, but has been a long term relationship and has two children. He is employable as a construction worker and has had a steady work history. Despite his intoxication of the night of the sexual assault he does not appear to suffer from substance abuse. He has no prior criminal history, and now that he has been in remand, fears homelessness and significant debt upon release.

Balancing the mitigating and aggravating factors and relevant caselaw, the fit sentence for sexual assault in these circumstances is the lower range of 3 years imprisonment. A further 90 days in custody from the time already spent in remand and an order for supervised probation of 18 months with ancillary orders, is determined to be a fit sentence.

Nuchatlaht v British Columbia, 2021 BCSC 370

Motion dismissed. The Province opposed the admission of an archaeologist’s report on culturally modified trees in an underlying Aboriginal title claim. It raised issues of bias or impartiality, novel approach, qualifications and necessity of the opinion. The report reached the threshold of requirement of admissibility.

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Mr. Earnshaw, an archaeologist, was asked to address the following by plaintiff’s counsel in an underlying Aboriginal title claim: 1) perform reconnaissance surveys within the Nuchatlaht claim area to understand the condition of recorded Culturally Modified Trees [“CMT”] sites as well as search out and record other previously unrecorded archaeological sites; 2) prepare written reports outlining findings; and 3) prepare a written expert report that includes the extent of archaeological research into the claim area, and what the archaeological record shows concerning the use and occupation of the claim area.

Mr. Earnshaw defined CMTs as archaeological features that refer to any tree with modifications related to the cultural use of the forest by Indigenous people. He testified he was impartial with respect to his opinion (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23). Experts are experts because they focus on a particular area. They may even express an opinion or theory in their writings, for example, that the less tread there is in a tire the tire more susceptible it is to hydroplaning. That does not mean that their evidence within that area should not be admitted.

Novel theory must be scrutinised at the admissibility stage (R v Bingley, 2017 SCC 12; R v J-L-J, 2000 SCC 51). However, the closer the opinion gets to the ultimate issue, the greater the scrutiny (R v Mohan, [1994] 2 SCR 9). Here the opinion does not approach the ultimate issue. The basis for Mr. Earnshaw’s opinion is not completely untested as it was contained in his thesis and one peer-reviewed article, and he has acknowledged the limits of the report. For example, he said he could not determine which groups were responsible for creating the archaeological sites. This is not a scientific report with formulas and calculations that makes it impossible for the Court to assess.

Mr. Earnshaw completed his master’s thesis on CMT studies on the Northwest Coast and is working on multiple archeology sites in BC, including several along the coast. He might not be a senior person in his field, but he meets the threshold requirement for admissibility (R v Marquard, [1993] 2 SCR 223). Mr. Earnshaw’s report may not give the near-conclusive evidence needed for the plaintiffs but nevertheless it is not irrelevant. The overall question of whether the pitfalls of admitting the report outweigh its usefulness, the Court concludes the report ought to be admitted.

Germa v Canada (AG), 2021 FC 134

An Indigenous inmate sought judicial review on a decision which revoked his statutory release. The Court decided that judicial discretion would not be exercised because the dispute had become moot and because a reviewing court has a traditional role of which it will not depart.

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Justin Germa, the Applicant, is an Indigenous inmate in a federal institution. He sought to obtain the judicial review of a decision made by the Parole Board of Canada. The decision revoked the statutory release of the Applicant. The Appeal Division confirmed this decision because the Applicant had failed to cite reasons justifying intervention. The Court had to decide if judicial discretion should be exercised in these circumstances.

The Applicant did not learn that he was Indigenous until 2016 while serving a sentence in a penitentiary and met his biological father there. He alleged that the Board had not adequately considered his Indigenous status. He further alleged that the Board used actuarial tools inappropriately as part of a psychological assessment contrary to the precedent set in Ewert v Canada, 2018 SCC 30.

A case becomes moot when the decision to be made can no longer have any practical effect on the rights of the parties, for example, because events have occurred such that a live controversy no longer exists (Borowski v Canada (AG), [1989] 1 SCR 342). The Court acknowledged that the live controversy that may have then existed in this case no longer exists. The issue has become abstract and the dispute cannot lead to any decision resolving it. The parties agreed that this dispute has become moot.

The Applicant argued that this case invokes a standard of correctness and falls under one of the exceptions raised in Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65. However, the Applicant wanted to refer to this Court a moot question not originating in facts giving rise to an administrative decision in a context that is highly specific. This would lead to a significant departure from the traditional role played by a reviewing court. The Court concluded that judicial discretion would not be exercised to hear the application for judicial review despite its mootness.

R v BTJN, 2021 BCPC 44

An Indigenous offender pleaded guilty to sexual touching of a minor. This occurred over a three year period that began when the victim was seven years of age. Despite Gladue factors of the offender, the young Indigenous girl has experienced horrible life altering effects from the violations. A conditional sentence is not adequate, thereby he is sentenced to six months in custody followed by a 24 month probation order.

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BTJN, a 28 year old Indigenous man, has pleaded guilty to touching for a sexual purpose, the body of his stepdaughter, contrary to s 151 of the Criminal Code. The victim is also Indigenous, which is an aggravating factor because of her vulnerability. These violations occurred from the young age of seven. She is now 12 years old. The offender also has three young children, in which he is the biological father.

The violations of his stepdaughter, has horribly impacted her life, as she feels isolated from her community in which her stepfather lives, her mother, although she believes her, and the victim no longer participates in the many extra-curricular activities that previously brought her joy. She has yet to access counselling at the date of this sentence.

Although BTJN has Gladue factors, is employable and has had some access to counselling in the pandemic, the emotional harm suffered by his stepdaughter continues to impact her significantly today, which cannot be minimized. Although a conditional sentence order may be appropriate in some circumstances for this type of offence, it is not adequate in this matter. The victim was very young, the offending occurred over a period of years, and the victim has been horribly impacted.

BTJN is sentenced to six months in custody followed by a 24 month probation order. The Court does not accede to the Crown’s request for a larger safety zone for the stepdaughter in the probation order, because a 200 kilometre ban would amount to banishment from BTJN’s home community. That would not be an appropriate outcome under this sentence as he will require support to succeed on this path of rehabilitation.

R v Kruger-Allen, 2021 BCSC 445

An Indigenous man is sentenced to almost three years for assaulting three young people, with one count stayed. He has significant Gladue factors and has shown receptivity for rehabilitation, if he can get his substance abuse addressed while incarcerated.

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On a stretch of beach in the City of Penticton, a group of young people were socializing at a firepit. Mr. Thomas Kruger-Allen was among them, and under the influence, groped a woman. She protested and Mr. Kruger-Allen punched her in the chest. Another young woman intervened and he punched her in the chin. Many bystanders gathered to watch the altercations, where on Mr. Kruger-Allen attempted to leave. On his way out he punched a young man who was inquiring what was happening. The blow had enough force that it not only incapacitated the young man, but he fell and his head struck the concrete, resulting in long lasting injuries. Mr. Kruger-Allen fled the scene and was arrested at his trailer. Because the police did not provide a warrant, there was also a Charter challenge from Mr. Kruger-Allen’s defence. Mr. Kruger-Allen has pleaded guilty to assaulting both young women, and to an aggravated assault of the young man and is now to be sentenced.

Mr. Kruger-Allan has significant Gladue factors. He is Indigenous from Penticton Indian Band on his mother’s side. There is severe intergenerational trauma, including substance abuse, domestic violence and neglect. He spent time in foster care and never received the proper supports to deal with his anger issues. Despite the difficult circumstances of his upbringing, Mr. Kruger-Allen completed grade 12 and found employment working for a cousin as a drywaller for three years, until he was remanded into custody in connection with these offences. His employer appreciates his work ethic and would hire him back. Mr. Kruger-Allen began counselling which has shown very beneficial to his path for healing.

Mr. Kruger-Allen does have a previous criminal record that includes three convictions for breach of an undertaking or recognizance, all apparently involving broken bail conditions, and a related conviction for an assault. He was out of jail on a recognizance of bail that included a condition that he abstain from the consumption or possession of alcohol. He was in breach of that condition, having drunk a great deal on the night of the assaults. While in custody, Mr. Kruger-Allen has had to abide by institutional rules. He did very poorly at first. His institutional convictions include possession of contraband, threatening or abuse of staff, assault of another inmate, disobeying staff direction, and obstructing an officer. His conduct improved over time. While in prison, Mr. Kruger-Allen has completed courses in living without violence and substance abuse management. His supervising probation officer reports that he was hostile, insolent and indifferent at first, and has demonstrated significant improvements in his attitude, insight and maturity.

Despite notable aggravating factors, there are also significant mitigating factors, including Mr. Kruger-Allen’s Indigenous background. This mitigates but do not eliminate his moral blameworthiness (R v Finlay, 2016 BCCA 299), however, the objective of rehabilitation carries particular weight in this case. Mr. Kruger-Allen is sentenced to imprisonment for the assault on the young man for five years less two years and 68 days, with a net sentence of two years and 297 days. Another count has been stayed, and the assaults on the young women is a net sentence of one day in jail, to be served concurrently.

As for the police breach of Mr. Kruger-Allen’s rights by entering into his residence to arrest him without a warrant, section 529.3 of the Criminal Code permits the police to enter into a residence to effect an arrest even without a warrant, if the conditions for obtaining a warrant exist. The officers’ objective was lawful as it was to take Mr. Kruger-Allen into custody. Their entry into the trailer was momentary, and ended as soon as they had him in custody. The police did not use excessive force. Mr. Kruger-Allen was not injured. He waited until the middle of his sentencing hearing to raise the matter. In sum, the officers’ misconduct was not egregious (R v Bacon, 2020 BCSC 1377; R v Punko, 2010 BCCA). A right-thinking Canadian would not consider that the police actions in this case gave rise to an abuse of process or did violence to the shared values of society.

Snaw-Naw-As First Nation v Canada (AG), 2021 BCCA 89

Application dismissed. Cowichan Tribes does not meet the criteria for a public interest intervention. It does not have a sufficiently broad representative base regardless of its size as a single First Nation, to be a public interest intervenor in the Snaw-Naw-As First Nation’s appeal regarding the status of a railway that runs through reserve lands. Cowichan’s similar litigation to the underlying appeal can be adequately presented by the appellant.

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Cowichan Tribes [“Cowichan”] seeks leave to intervene an appeal by the Snaw-Naw-As First Nation [“SFN”] concerning the status of a railway right of way that runs through the SFN reserve. The dispute underlying the appeal concerns the E&N Railway on Vancouver Island [“Railway”] and the grant of a right of way through reserve lands. Use and operations of the Railway changed and declined over time, eventually being contracted out for some freight use.

The Railway, now owned and operated by the defendant Island Corridor Foundation [“ICF”], transects 1.3 km of the plaintiff First Nation’s reserve lands in Nanoose. This strip of land is subject to a right of way in favour of ICF. SFN sought a declaration that its lands subject to the right of way were no longer being used for railway operations and purposes, and a corresponding declaration that the lands revert to the administration and control of Canada for the use and benefit of SFN as part of the SFN reserve. SFN asserted that the railway corridor was not being used for railway purposes, had been abandoned, and there was no business case for the ICF to restore and operate it. The trial judge found that there had been no formal abandonment of the railway, as ICF had not abandoned efforts to fulfill its mandate despite lack of funds, and was maintaining the railway corridor to the extent possible. In the appeal, the SFN alleges errors of law by the trial judge.

In this matter, Cowichan, a band within the meaning of the Indian Act with reserve lands in and around the Cowichan Valley on Vancouver Island, is a large First Nation with over 5,000 members. Similar to SFN, the Railway passes through Cowichan’s reserve lands. Cowichan is also a member of ICF. Cowichan commenced litigation in the Supreme Court of British Columbia, making similar claims to SFN. Cowichan did not advance its action, as it was waiting for the outcome of the SFN litigation. Cowichan seeks to intervene on a public interest basis to make submissions on the principles that should guide the court’s interpretation of the interests at stake in light of the character of the right of way as Indigenous lands.

Section 10(2)(a) of the Court of Appeal Act provides that a justice may make an order granting leave to intervene as an order incidental to an appeal. A justice’s discretion to grant intervenor status is governed by the following principles: 1) the applicant must have a direct interest in the matter; or 2) must have a public interest in a public law issue in question; and 3) can make a valuable contribution or bring a different perspective to a consideration of the issues on appeal that differs from that advanced by the parties (Halalt First Nation v British Columbia (Environment), 2012 BCCA 191).

Cowichan does not claim to have a direct interest in this appeal and acknowledges the importance of the decision as precedential value in its own case. As a proposed public interest intervenor, it must have a distinctive perspective on the interpretation of the right of way that would be of assistance to the court (Equustek Solutions). While an intervenor’s submission may support one party’s position, the intervenor’s role is not to support the position of a party but to make principled submissions on pertinent points of law (Araya v Nevsun Resources Ltd, 2017 BCCA 402). Repetition is to be avoided and the appeal must remain focused on the issues raised by the parties (Ahousaht Indian Band and Nation v Canada (AG), 2012 BCCA 330; British Columbia Civil Liberties Association (AG), 2018 BCCA 282).

In consenting to Cowichan’s application, SFN submits that the trial decision did not engage the Indigenous perspective, and hearing from another First Nation at the appellate level would assist the court to understand the nuance and contours of the Indigenous perspective. Although Cowichan seeks only public interest intervention, however, its own interest in this litigation distorts the basis for this application. In assessing a proposed public interest intervenor, the court’s focus is not on the interest of the intervenor but on the court’s interest in ensuring that important points of view are not overlooked. The Court is not satisfied that Cowichan’s distinct perspective about the principles of interpretation of historical takings will be of assistance.

The broader interpretive principles can be adequately presented by SFN and Cowichan’s proposed submissions are largely duplicative of those of SFN. The focus will be the interpretation of the limiting conditions of the right of way in the context of the sui generis nature of reserve lands. In all of these circumstances, Cowichan does not meet the criteria for public interest intervention and the application is dismissed.

R v Picody-Naveau, 2021 ONSC 1714

Application granted. An Indigenous offender, charged with several Criminal Code offences, including second-degree murder, is granted bail as the mens rea is on the weaker spectrum for the offence. He has strong family support and sureties, will subject himself to GPS monitoring and any travel is substantially limited by the pandemic.

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Isaah Picody-Naveau, an Indigenous man, has been charged with second-degree murder, along with several Criminal Code offences, including domestic violence against his intimate partner. This matter is an application for bail pursuant to ss 515 and 522. Mr. Picody-Naveau is alleged to have aided another offender, in the stabbing death of a man who was stabbed multiple times in the back with a drywall knife, who then subsequently died of his injuries in hospital. This offence was recorded on video, and Mr. Picody-Naveau is jointly charged for the murder as an aider and abettor. There is weakness, however, of the mens rea element in the Crown’s case against the applicant as pointed out in the written decision committing the applicant to stand trial on the 2nd degree murder charge, set to be heard in 2022.

The accused has been in custody on these matters for almost a year. There are four videos of altercations involving the applicant, who seems to be the instigator, at the Ottawa Carleton Detention Centre [“OCDC”]. He has a violent temper and has not done well at the OCDC. A Gladue report was prepared that detailed the many struggles the applicant has faced culturally and emotionally over the course of his 23 years of life. His difficulties with the criminal justice system and reckless behavior are in some measure attributable to chronic alcohol and addiction issues, a difficult and tragic upbringing and being transplanted from a small town in northern Ontario to the city of Ottawa.

The risk of Mr. Picody-Naveau not attending Court is sufficiently abated by the fact that he will be under the supervision of his family; that he will have to wear a radiofrequency monitoring ankle bracelet; he and his sureties will each be posting Bonds of $1000; and the pandemic where travel is substantially restricted. The applicant has satisfied the Court that detention on the primary ground was not justified on the facts of this case. While the applicant’s track record for obeying release orders has been abysmal, and he has been shown to be a risk to reoffend, the applicant has been in custody awaiting trial on all these charges for more than 315 days.

The second degree murder charge is a weak case and the presumption of innocence looms large. As the Supreme Court of Canada states, “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons” (R v Antic 2017 SCC). Therefore, the application for bail is granted.

R v JG, 2021 ONSC 1095

The Court sought to impose a sentence which took into consideration both the crimes and circumstances relevant to the particular case and defendant. In doing so, the Court noted the defendant’s experiences as a Black man who experienced systemic discrimination throughout his life, akin to Gladue factors used in the sentencing priniciples for Indigenous offenders. The Court found that while this should be considered as a mitigating factor, given that this is a sex trade related offence, deterrence and denunciation must ultimately be considered as paramount sentencing objectives here. The Court concluded by imposing a global sentence of four years and six months.

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The offender, J.G. was convicted of five criminal counts relating to his active involvement in the complainant’s work in the sex trade industry. The complainant is a minor who sought out J.G. to assist her in setting up and managing a sex trade enterprise. J.G. provided her with guidance on how to carry out the trade and received 50 percent of the complainant’s sex trade earnings.

The central area of contention within this case revolves around the Court’s objective to determine a fair and just sentence. In doing this, the Court sought to consider the circumstances of the offender and the offence, which involved an assessment of relevant mitigating and aggravating factors.

In assessing these factors, the Court noted several aggravating factors, including the young age of the complainant, who was 17 at the time J.G. oversaw her work in the sex trade. J.G.’s material benefit from the sex trade work, and the fact that he had a lengthy criminal record which included a former conviction and sentence for a sex trade related offence were also considered to be aggravating factors.

Mitigating factors taken into account included several aspects of the defendant’s personal circumstances, including his young age of only 27 years old, and his experiences as a Black man and thus member of a racialized community. Specifically related to J.G.’s social history, the Court noted that given that systemic racism against Black people is a notorious fact, it is not necessary for a Black offender to prove its impacts before it can be considered a mitigating factor, akin to Gladue factors used in the overall consideration for sentencing Indigenous offenders.

The Court concluded that while rehabilitation must remain an importance objective to consider, deterrence and denunciation must still be considered as the paramount sentencing objectives here given that this is a sex trade related offence. In balancing these sentencing objective as well as the aggravating and mitigating factors, the Court found that the appropriate sentence here is four years and six months.

 

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