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 Kishayinew, 2021 SKCA 32

Appeal allowed against sentence. A substitution of four years minus pre-sentence custody and removal of a victim surcharge is given to an Indigenous man who sexually assaulted an intoxicated woman after luring her to his home under the guise of safety.

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This matter deals with a sentence appeal for Mr. Monty Kishayinew, an Indigenous man from Yellow Quill First Nation. He was convicted of sexually assaulting an intoxicated and vulnerable woman who he encountered in an alley in Saskatoon, where under the pretence of offering her help, he took her to his home. There, he sexually assaulted her in his basement, and until she feigned needing to use the bathroom and was able to escape (R v Kishayinew, 2017 SKQB 177).

Mr. Kishayinew was sentenced to four-and-a-half years in prison, minus credit for pre-sentence custody but has appealed both conviction and sentence. Appeal for his conviction was granted and a new trial was ordered. As a result, his sentence appeal was not addressed. The conviction was restored by a subsequent appeal to the Supreme Court of Canada, which remanded the matter to this Court to determine the sentence appeal.

After conviction, the trial judge adjourned sentencing and ultimately ordered the preparation of a pre-sentence report. Mr. Kishayinew was sentenced to 54 months of incarceration, minus a pre-sentence credit of 17 months and 2 days, and for Mr. Kishayinew to pay a victim surcharge in the amount of $200 within 30 days, with 2 consecutive days in default of payment (R v Kishayinew, 2017 SKQB 340).

Mr. Kishayinew appeals his sentence pursuant to s 675(1)(b) of the Criminal Code. A sentencing decision is entitled to considerable deference upon appeal (R v LV, 2016 SKCA 74, [2017] 1 WWR 439 ). This Court concluded, however, that the trial judge committed errors in principle by erroneously relying on the absence of remorse as an aggravating factor and by misstating Mr. Kishayinew’s position on sentencing in a material manner. The combination of the errors shows that there was an impact on sentence and appellate intervention is required.

The circumstances of this offence are extremely grave and Mr. Kishayinew’s lengthy criminal record is an aggravating factor with convictions of at least sixty-three prior offences dating back to 1996. At the time he committed the current offence, Mr. Kishayinew was on bail with an undertaking to keep the peace and be of good behaviour. Mr. Kishayinew’s high risk to reoffend, generally and sexually, is also a relevant factor. Mr. Kishayinew’s actions in relation to this matter were reprehensible. He knew the woman was distraught, intoxicated and vulnerable and he took advantage of this situation to convince her that she was not safe but would be safe with him. Using this deception, he took her to his house where he sexually assaulted her. These actions speak to a high level of moral culpability.

Mr. Kishayinew, however, has considerable Gladue factors and these principles must be applied even in serious cases involving sexual violence (R v Friesen, 2020 SCC 9). Even when the circumstances of a case unquestionably call for a penitentiary sentence, these factors remain relevant (R v Ratt, 2021 SKCA 7). He suffered extensive abuse from family members who suffered significant intergenerational trauma. Mr. Kishayinew has issues with substance abuse, but has completed grade 11 while incarcerated, and continues towards his GED. His personal supports and relationships are limited along with his employment history.

The gravity of the offence is severe and Mr. Kishayinew’s moral blameworthiness is high, although his moral culpability is somewhat tempered by Gladue factors. The appropriate sentence for this offence, for this offender, for the harm caused to this victim is four years with pre-sentence custody credit. The victim surcharge of $200, and the two days in default of payment for the victim surcharge, is set aside (R v Boudreault, 2018 SCC 58).

Toutsaint v Correctional Service Canada and West Coast Prison Justice Society v Correctional Service Canada, 2021 CHRT 3 (CanLII)

Motion granted. Correctional Service of Canada requested that an Indigenous federal inmate that is currently serving an indeterminate sentence as a dangerous offender, have his complaints heard the same time as another harassment complaint, as the allegations and issues are substantially similar in fact and law.

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Mr. Joey Toutsaint is Indigenous and is a federal inmate currently serving an indeterminate sentence as a dangerous offender and is classified a maximum security inmate. He alleges that Correctional Service of Canada [“CSC”] has discriminated against him on the grounds of disability, national or ethnic origin, race and/or religion and that individual CSC employees have mistreated and harassed him.

Mr. Toutsaint further alleges that a number of CSC policies and practices disproportionately and adversely impact inmates with mental health disabilities generally, and Indigenous inmates with mental health disabilities specifically. This includes access to therapy, Indigenous cultural and spiritual practices and culturally appropriate treatment, placement in administrative segregation and prolonged periods of isolation, and the use of force. Mr. Toutsaint also filed a separate retaliation complaint.

The West Coast Prison Justice Society [“WCPJS”] operates a legal aid clinic for federal and provincial inmates under the name Prisoners’ Legal Services, who are also counsel for Mr. Toutsaint. The WCPJS complaint was filed on behalf of prisoners “with mental disabilities under the control of CSC” and alleges that CSC discriminates against prisoners on the grounds of disability, race, national or ethnic origin, and religion in the areas of security classification, access to treatment, the use of administrative segregation and the use of force.. The complaint relies heavily on Mr. Toutsaint’s experiences while incarcerated, along with those of two other federal inmates.

Along with other remedies, Mr. Toutsaint, the WCPJS, and the Canadian Human Rights Commission [“Commission”] seek a number of systemic remedies involving changes to CSC policies and practices that affect inmates with mental health disabilities generally and Indigenous inmates with mental health disabilities specifically.

The Tribunal may order that complaints be heard together if it determines it is appropriate to do so on the facts and law (Lattey v Canadian Pacific Railway, 2002 CanLii 45928 [“Lattey”]) In deciding whether to hear complaints together, the Tribunal should consider: 1) the public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results; 2) the potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and 3) whether there are common issues of fact or law.

The application of the Lattey factors to these complaints favours holding a single hearing on the basis of a joint record. The remedies sought by Mr. Toutsaint and the Commission are broad and may potentially lead to a lengthy and complex disclosure process in both cases. The Commission has confirmed that Mr. Toutsaint and the Commission have refined and narrowed their disclosure requests with a view to the matter proceeding as expeditiously as possible and to avoid voluminous production of documents that are not arguably relevant to the complaint.

R v RO, 2021 BCPC 29

An Indigenous offender, after consideration of Gladue factors, was sentenced to 4 years for indecently assaulting a child between the years of 1974 and 1977 inclusive. The victim suffered lifelong impacts from the years of incidents that continues to effect his quality of life.

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R.O. was found guilty at trial for indecently assaulting M.L. from 1974 to 1977 inclusive, contrary to Section 156 of the Criminal Code. M.L. was almost 7 years of age at the start of the timeframe and nearly 11 years old at the end of it. The offender was in his early 20s and had been placed or adopted into M.L.’s wider family as an infant.

When he was 7, M.L. was looked after by his grandmother at her home and the offender would often be there for M.L.’s dinner and bath time. His grandmother ran the routine like clockwork, and the offender would often come in to the bathroom and sexually assault him in various disturbing acts. M.L. felt he had no choice but to go to his grandmother’s, and felt forced to cooperate. The acts were frequent, two to three times a week, and escalated in becoming more aggressive and intrusive over time. Eventually, M.L. discovered extracurricular activities which kept him away from his offender when he was near the age of 11. However, the impact of the abuse inflicted by the accused on M.L. has been profound and has lasted many years. He has trust issues and difficulties with personal relationships. As well, he has issues with substance abuse and suffers poor mental health.

The offender has a record of sexual offences involving young boys, with criminal convictions recorded against him in 1981, 1992, and 2014. The offender started professional counselling, but R.O.’s Community Corrections file indicates on past supervision that he maintained denial on all convictions, minimized his sexual offending and was highly resistant to attending or participating in any interventions targeted at his sexual offending. He continues to believe any interventions aimed at his sexual offending are not beneficial to him.

R.O., who is now 67 years of age, has significant Gladue factors. The report outlines that he is a member of a First Nation, near Lillooet, British Columbia. R.O. was reportedly apprehended by Ministry social workers at the age of two weeks when he was found at home without adequate supervision. The offender said he didn’t remember much of his childhood but had a clear recollection of being sexually assaulted by two teenaged boys at two different times when he was ten years of age. R.O has had limited education and some employment. He suffers from various mental illnesses and disorders.

Although there are significant Gladue factors of the offender, the significant factors and the gravity of the offence, including the profound wrongfulness and harmfulness of sexual offences against children must also be taken into account. There was a life-long impact on this victim who was a child in primary school at the commencement of a period of prolonged offending by the offender. R.O. is sentenced to 4 years, with other ancillary orders.

R v GD, 2020 MBPC 27

The Court sentenced an Indigenous offender to 18 months custody for committing sexual assault and a breach of release order. A Pre-Sentence Report was considered, and the Court determined that the offender lacked insight into how the crime had negatively impacted the victim.

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Mr. GD pleaded guilty to sexual assault that occurred in 2018. At that time, he was 22-years-old and the complainant was 15-years-old. He has also pleaded guilty to a breach of a release order, by having contact with the complainant. The Crown sought a maximum sentence of 18 months for the sexual assault and a consecutive sentence of one month for the breach, followed by a Probation Order of two years. The defence sought an eight month sentence on the sexual assault and a non-custodial sentence on the breach.

The Court looked to the fundamental purpose and principle of sentencing and acknowledged that teenagers under the age of 16 require protection from unwanted, forced and premature sexual activity from adults or people more than five years older than them. Not only was the complainant incapable of consenting to engage in sexual activity because she was under the age of sixteen, but the moral culpability of a 22-year-old committing a sexual offence against someone of her age is high. Further, the complainant became pregnant and gave birth to the offender’s child at the age of sixteen.

The Court considered a Pre-Sentence Report which took into account the offender’s Indigeneity. His family history includes parental alcohol abuse and neglect, child protection intervention, poverty, inadequate food, a lack of a father figure, amongst others. The Report also indicated that he has a lack of insight into his offending behaviour that demonstrates an unsophisticated and dangerous view of women and girls.

It is mitigating that he pleaded guilty, saving the victim from a trial, as weel he has no criminal record and has taken anger management. It is aggravating that he lacks insight, there is a high risk of his reoffending, and the offence has resulted in a child who now has a single mother. The Court was of the view that the best method of deterring him in the future is to take sex offender treatment. However, the recommended program is not currently running due to COVID-19. The offender was sentenced with the hopes of the program running in the near future and to ensure he has enough time to apply and participate. In such a case, he will learn more about premature sexual activity and its negative impacts, the particular vulnerabilities of young, Indigenous girls, his own power and his probably unintentional exploitation of that power over young sexual partners.

The sentence on the sexual assault was one of 18 months custody and one week for the breach of the release order, followed by two years of supervised probation. After applying credit for time served, GD has 286 days remaining of his sentence.