R v JP, 2020 SKCA 52

Leave to appeal granted and appeal allowed from sentence. Pursuant to s 687(1)(a) of the Criminal Code, the sentence of an Indigenous offender for two robberies is varied. It is ordered he serve concurrent sentences of five years in relation to each of these two crimes, with a global sentence of eight years less credit for time spent on remand.

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This appeal concerns the proper sentencing of an accused who suffers from Fetal Alcohol Spectrum Disorder [“FASD”] and whose personal circumstances called for application of the principles set out in R v Gladue,  [1999] 2 CNLR 252 [“Gladue”]. The offender, who is of Indigenous ancestry, was convicted of being a party to two armed robberies. He also pleaded guilty to several other offences. For all of these crimes, he was sentenced to 17 years’ imprisonment, which was reduced by the sentencing judge to a global sentence of ten years less credit for time spent on remand.

The offender had an extensive criminal record with over 70 convictions that pre-dated these matters. A Gladue report was prepared that recounted the history of his family and community. The extreme poverty, minimal educational opportunities, and overcrowded and deficient housing experienced by the offender’s parents cannot be captured in a few words, but the outcome was a life of family dysfunction, substance and alcohol abuse, and violence.

The offender’s grounds of appeal must be examined in light of the applicable standard of review. He took the position in this Court, that the judge committed several errors in principle and, in any event, that the global sentence is demonstrably unfit.

The factors indicated the offender has reduced moral blameworthiness. These factors were overwhelming and their connection to the offences cannot be credibly denied. This is not a case where the connection between the “systemic and background factors that have contributed significantly to [the offender’s] circumstances, and to his appearances before the criminal courts of this province” is elusive. It is impossible not to see a direct connection between these factors and the specific crimes for which the offender was being sentenced. Cause and effect are not required, but the facts of this case come as close as most any situation could (R v Ipeelee, [2012] 2 CNLR 218). The Court determined the judge erred in principle by failing to account for the systemic and background factors (including FASD) that was earlier identified as having contributed significantly to the offender’s circumstances and his commission of these offences.

This Court cannot interfere with a sentence simply because a judge has committed an error in principle. It must also conclude that the error had an impact on sentence (R v Lacasse, 2015 SCC 64). In this matter, the impact of the judge’s error is evident from his treatment of the precedent he relied upon to identify a fit sentence. This Court has no hesitation in concluding that the failure to account for the offender’s reduced moral culpability had a decisive impact on the sentence the judge imposed in this case.

The judge determined that a fit sentence for each robbery was seven years’ imprisonment, running consecutively. In connection with a housebreaking offence, it was determined that a fit sentence to be two years’ imprisonment, consecutive to the sentences for the two robberies. It was determined that a fit sentence for the remaining crimes was 12 months, concurrent on all those offences, but consecutive to the robbery and housebreaking offences. All of this would result in a combined sentence of 17 years, which the judge reduced to a global sentence of 10 years’ imprisonment. This was achieved by directing that the robbery sentences be served concurrently, not consecutively.

Although this Court is to sentence afresh, the only point of criticism that can be offered to the judge’s sentencing decision is the failure to account for the offender’s reduced moral culpability when it came time to fix a sentence. Considering the guidance provided by the case law, and given the offender’s reduced moral culpability through the appropriate assessment of his FASD and other Gladue considerations, a fit sentence in this case should remain within the range identified in previous case law, but at its low end. A sentence of five years’ imprisonment on each robbery conviction will fall at the low end of the range (R v Kirklon, 2015 SKCA 67), properly denounce the offender’s unlawful conduct, and not separate him from society for longer than necessary. Expert evidence suggests that there are ways the public could be protected by managing the offender in the community once he has served his sentence.

R v Duncan, 2020 BCSC 590

Application granted. The Indigenous accused is to be released on bail, subject to stringent conditions, on the tertiary grounds for pre-trial custody in excess of 90 days and concerns surrounding the COVID-19 pandemic in jails.

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This matter is a detention review hearing pursuant to s 525 of the Criminal Code. The 32 year old accused from Musqueam First Nation has been in pre trial custody for ten months. His custody relates to multiple alleged offences, including breaking and entering. As per the Gladue factors, his life reflects the intergenerational legacy of the horrific historical treatment of Aboriginal peoples in this country. The accused has a lengthy criminal history.

Counsel for the accused provided new evidence combined with a change in circumstances that warrants a re-visiting and reassessment of the restrictive and supervised treatment program at VisionQuest as a viable and proportionate alternative to the accused’s continued detention. It has culturally relevant programming and a high level of supervision.

The overarching question before the Court is whether the continued detention of the accused until his trial(s) is still justified on one or more of the three grounds specified in s 515(10) of the Criminal Code (R v Myers, 2019 SCC 18). The Court is satisfied that a release plan requiring the accused’s participation in VisionQuest’s isolated residential treatment program combined with strict mobility restrictions would be a culturally responsive and appropriate application of the Gladue factors in this particular case.

There also remains the question of the COVID-19 pandemic. Much of the case law that has developed thus far on this subject deals with the tertiary ground for detention. There are an increasing number of cases which have held that the risk of infection posed to inmates while incarcerated in detention centers awaiting trials is also a valid factor when considering the secondary ground for detention specified in s 515(10)(b) of the Criminal Code (R v TK, 2020 ONSC 1935).

The government is well aware of the risks involved and has implemented a number of measures designed to reduce the spread of the infection in jails. In this particular case Court already concluded that the accused’s proposed release plan satisfactorily addresses public safety concerns, however, COVID-19 concerns would have tipped the balance in favour of interim release rather than continued detention on secondary grounds. Although the break and enter offenses are serious, no physical violence was involved.

The accused is a drug addict with a criminal history of property crimes fuelled by his addiction. That addiction and most, if not all, of the disadvantages he has suffered in life are the product of the sad social problem that is the legacy of the mistreatment of Aboriginal peoples in Canada.

R v Hartling, 2020 ONCA 243

Conviction appeal dismissed. Sentence appeal allowed in part along with a stay of a second breach of probation charge. The Crown tried to rely on the delays involved in obtaining a Gladue report to justify the post-verdict delay.

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Following an afternoon of heavy drinking with her adult son and boyfriend, the complainant was seriously assaulted. She told first responders that her son was responsible. The son was charged. The mother testified for the Crown that her son attacked her and her boyfriend following an argument. Months later the trial resumed. This time the mother testified for the defence. She changed her testimony and said that it was her boyfriend, not her son, who attacked her.

The trial judge convicted her son for aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody. After considerable delays, the trial judge found the appellant guilty of aggravated assault against his mother, her boyfriend along with resisting arrest and two counts of breach of probation. Following 8.2 months of pretrial custody, he was sentenced to 21.8 months of incarceration.

The son appealed his convictions and sentence. However, the post-verdict delay was determined unacceptable to this Court. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report. Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately. The issue of post-verdict delay was addressed by this Court in R V Charley, 2019 ONCA 726 [“Charley”], where a presumptive ceiling of five months was set for the time from verdict to sentence.

In an attempt to justify the delay, the Crown alleged extraordinary circumstances because of the issues with the Gladue report and because the case was already in the system when Charley was decided. The Court does not accept that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable.

The appellant was entitled to a Gladue report, the trial judge ordered it, and subsequently relied on it. According to R v Jordan, 2016 SCC 27, the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to qualifications but these qualifications do not apply in this matter. A 14-month delay was unreasonable and breached the appellant’s s 11(b) Charter rights.

A stay of a valid conviction would impact public confidence in the administration of justice. The possibility of vacating a valid conviction based on sentencing delay is “an unjustified windfall” for the accused (Betterman v Montana, 578 US, 136 S. Ct. 1609). The appropriate and just remedy here should target the sentence, not the conviction. The appellant was convicted of a violent offence against his mother in her home. It would bring the administration of justice into disrepute to stay the conviction. For the remedy to target the sentence, it must be based on and align with sentencing principles. The sentence is reduced by five months.

R v Lemieux, 2020 ONCJ 54

The Court did not believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage. He is sentenced to 26 months for the possession of child pornography contrary to s 163(4) of the Criminal Code.

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Just over a year prior, the offender entered a guilty plea to a single count that he did, without lawful excuse, possess child pornography in the form of videos and images contrary to section 163(4) of the Criminal Code. The Crown elected to proceed by way of indictment. Leading up to sentencing, there was preparation of a pre-sentence report, a Sexual Behaviours Assessment and a Gladue report.

The Ottawa Police Service initiated an investigation into the possession and sharing of suspected child pornography by following the information of an IP address that identified and led them to locate the offender’s home address. A search warrant was executed on the residence and the offender was placed under arrest. A desktop computer was seized as well as an external hard drive. There were 6617 images of child pornography and 611 videos of child pornography.

Although Gladue factors could be relevant to a sentencing for possession of child pornography, the offender brought this claim forward especially late in the proceedings after he was expressly provided opportunity to claim First Nations heritage. He was adopted at six months into a Franco-Ontarian family and therefore the source of ethnicity would be his birth parents. He could only recall his mother’s first name. The Court did not ultimately believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage.

Overall, in the circumstances in this case, the record did not reflect a situation where credit should be given due to the restrictive nature of the bail conditions. Further, the court was not convinced on a balance of probabilities that the offender had been making serious and consistent efforts towards rehabilitation and thus not able to receive any credit.

An important case in Ontario involving sentencing for the possession of child pornography is R v Inksetter, 2018 ONCA 474 [“Inksetter“], and in the present matter the offender’s collection was nowhere near as large and while vile, did not seem to have been of the same level of depravity as that in Inksetter. He was cooperative with police while arrested, he plead guilty, complied with the conditions of his bail and had been a model resident at the John Howard Bail Bed Program. However, there was no clear indication the offender was truly remorseful. His cavalier attitude towards treatment lead the court to believe he had no true insight into his pedophilia. The age of children, size of collection and nature of acts depicted were aggravating. The most aggravating was his prior criminal record which consisted entirely of sexual assaults against children. This single factor alone would make a reformatory sentence inappropriate. Based on the foregoing, a sentence of twenty-six months was appropriate with the ancillary orders put forward by the Crown granted.

R v Paulson, 2020 ONCJ 86

After weighing the Gladue Report and other sentencing principles with the circumstances of the offender, 338 days of time served plus one day concurrent was imposed for the guilty plea of three offences.

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The 28 year old Indigenous offender pled guilty to three counts of Aggravated Assault, Breach of Recognizance, and Assault. The Court read about the offender’s personal circumstances in a Gladue Report and also had the opportunity to hear from her and her family during a sentencing circle. Following the sentencing principles of s 718 of the Criminal Code, it was necessary for the sentencing judge to analyze the circumstances of the offences and determine the weight of those factors while simultaneously considering the principles of denunciation and deterrence.

The offender is a single mother of four children. Her grandparents attended Residential School, which has had a tremendous impact on her mother, and herself. While growing up, she spent significant periods with relatives and friends before she was placed into foster care where she experienced childhood neglect and sexual abuse. The offender became pregnant at the age of fifteen and began abusing illicit substances while also entering into physically abusive relationships with men. She continued to have three additional children but has lost custody of all four. Losing her children caused the offender to experience Post-Traumatic Stress Disorder [“PTSD”], and she spiralled downward into further drug abuse. She did not have a prior criminal record.

It was accepted by the Court that the offender’s criminal actions were the result of extreme intoxication and that she had no memory of the events in question. Aggravating factors were considered including that the assaults were unprovoked, the assaults involved the use of a knife, the offender was on bail during the time of the attacks and was prohibited from possessing weapons, and the level of violence was significant. The mitigating factors included the fact that the offender pled guilty, she had no prior criminal record, her background as an Indigenous person impacted her life, she had PTSD at the time of the offences, and she was remorseful for her actions. It was decided that an appropriate sentence was one that would reflect the time that she had already served.

R v TLC, 2019 BCPC 314

After weighing the sentencing principles with information provided by a Gladue report, a conditional discharge with 18 months of probation was imposed for the guilty plea of three offenses.

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TLC pled guilty to two assaults on her boyfriend and a breach of bail by having contact with him contrary to ss 266 and 145(3) of the Criminal Code. The Crown and Defence counsel agreed on what the appropriate sentencing for the offence should have been and collaborated to recommend a joint submission for a suspended sentence with an 18-month period of probation. An alternative method of placing the accused on probation would have been a conditional discharge which, would have prevented them from having a criminal record. When deciding whether the joint submission was appropriate, it was determined that the Court should only depart from a joint submission where “the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system” (R v Anthony-Cook, [2016] 2 SCR 204). However, as this case involved an Indigenous offender, the Court found it necessary to evaluate whether there was “enough information to impose a fit sentence that properly considers the Indigenous circumstances of that particular Indigenous accused.”

There was a Gladue report written for TLC. It outlined that the offender was a First Nations woman who was not directly raised with her culture. Her mother was abused when she attended residential school. TLC was abused as a child and grew up with violence in her home. TLC was a victim of domestic assault and had been receiving trauma counselling and therapy. She also was two subjects away from completing grade 12 and had completed the Indigenous Tourism Ambassadors program through the Indigenous Community for Leadership and Development. The Court recognized numerous aggravating factors, including the violence perpetrated against TLC from a male and the repeated victimization that she faced throughout her life. Deterrence, denunciation and rehabilitation were also considered as the offender was charged with spousal assault. It was decided that TLC had truly turned her life around and giving her a criminal record would not serve the public interest; therefore, a conditional discharge with 18 months of probation was imposed.

R v Buffalo, 2020 ABQB 41

Conditional sentence granted for an Indigenous offender. A conditional sentence is available to an offender depending on the context of the case and if it is appropriate. Sentencing principles, as well as the safety of the community, must be considered in granting restorative sentences.

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A Gladue report was ordered for an offender, who has pled guilty to three charges contrary to the Criminal Code. The offender is a member of the Samson Cree Nation. He had a difficult and unstable upbringing, which had led to unfortunate life choices. These choices included a criminal record with offenses of theft, break and enter, assault, aggravated assault, a variety of weapons charges, mischief, manslaughter, and instances of non-compliance. However, he had recently turned his life around by embracing his cultural heritage, supporting his family, and operating his own business which employed other Indigenous persons. He was supported by numerous letters of support from community members and local businesses.

Since the offender requested a conditional sentence, the Court undertook the analysis of the four criteria that are required, as outlined by s 742.1 of the Criminal Code (R v Proulx, 2000 SCC 5). This framework directs the Court to determine whether a conditional sentence is “available” in the context of the case and whether it is “appropriate” to impose a conditional sentence. The availability relates to the existence – or lack of – the minimum term of imprisonment, and if not, whether a federal penitentiary term is indicated in the circumstances of the case. Regarding appropriateness, the Court considered whether the fundamental purpose and principles of sentencing are met by a conditional sentence, including the duration and conditions that should be attached. As well, the question was addressed of whether the safety of the community was endangered by the offender serving the sentence in the community.

After reviewing the circumstances of the case, the Court determined that a conditional sentence was available to the offender. It was decided that the restorative sentence met the objectives of the sentencing regime as per ss 718 to 718.2 of the Criminal Code.

 

 

R v Gamble, 2019 SKQB 327

The accused’s application for a state-funded Gladue Report is dismissed.

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 The accused was found guilty for aggravated assault and unlawful confinement of a victim. The victim was waylaid and taken into a house where he was beaten and tortured. He was branded and his finger was cut off.

The sentencing of the accused has been delayed numerous times. The ongoing issue is how best to put required Gladue information (R v Gladue, 2 CNLR 252) before the Court for sentencing purposes. The accused wants a full Gladue Report filed, but has no resources for it. He wants the state to pay for this report. Court Services opposes such an order. The position taken is that there is sufficient information through a series of pre-sentence reports [“PSR”] already filed. Further, it is argued there are other means of putting that information before the Court.

At present there are no national standards and there is no national regulator. No formal accreditation is required to do a Gladue Report, as none exists. Section 718.2(e) of the Criminal Code and R v Gladue and R v Ipeelee, [2012] 2 CNLR 218, require that “Gladue information” be considered by any sentencing judge when dealing with an Indigenous offender. There can be no doubt that modern sentencing requires such a consideration. While s 718.2(e) is silent on how the Court may obtain this required information, for the purposes of sentencing, obtainment of this information is a must.

The defence argued that the information in the PSRs was inadequate. It is unclear by whose standards this would be the case. A major flaw in the accused’s argument was that there are absolutely no standards, nationally or even provincially, for the preparation of Gladue Reports or the type of information a court needs, and that requirement is highly fact-dependant. What is required in one case may not be required in another.

There is no basis in the evidence before the Court or in the law that the Gladue information must come to the court in the form of a report. Even if this Court granted the order sought by this offender, an author would not be identified or an amount for fees be decided for such a report. That is subject to negotiations between a potential author and Court Services. To make an order that is so directive to the executive branch of government is to overstep within the judicial branch. The granting of the relief sought herein is exceptional, rare, and done in response to specific and exceptional circumstances where a PSR does not provide the appropriate information and there is no other way to obtain that information and present it to the court. That is not the case here.

R v Vandal, 2020 BCPC 11

The sentence imposed on the accused, who is of Indigenous heritage, must denounce and deter his and others conduct, as the many offences committed were serious.

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The accused is a 46-year-old Indigenous male with a long-standing drug addiction and has in excess of forty convictions for break and enter and a total of sixty criminal convictions. The court has had the benefit of a Pre-Sentence Report (PSR), a Gladue Report, and to the offender’s credit, he has made repeated efforts to conquer his long standing drug addiction. In addition to accessing Indigenous programming in custody, the accused has established connections with Elders, regularly attends sweats, healing circles and weekly smudges. The Gladue Report summarized his childhood abuse, parental instability, early introduction to drug use and his alienation from his Indigenous background. In mitigation, it is significant that the offender pleaded guilty, which represents some expression of remorse.

However, there are many aggravating factors. His lengthy criminal convictions demonstrates that previous efforts to deter him have been unsuccessful, and his history does not support a finding that he is truly dedicated to his rehabilitation. As well, two of his offences were committed while bound by a recognizance. In the circumstances, the offences combined with his personal circumstances demands a sentence that denounces and deters. A sentence of six years less the time served will adequately denounce and deter while still being proportionate. The sentence imposed will provide an opportunity for the offender to continue with his culinary training while permitting him to engage with Indigenous programs.

 

R v Georgekish, 2019 QCCQ 2341

After weighing the sentencing principles with information provided by a Pre-Sentence Report and a Gladue Report, it was determined that deterrence and denunciation should heavily shape a fit sentence due to the gravity of the offence.

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The offender was intercepted by police on the highway in possession of a large quantity of cocaine she was sent to purchase with money from her sister, before she got back to her home community where she intended to sell it. The offender plead guilty and at the time of the offence, she only had a few prior convictions. She is a member of the Cree Nation and a mother of six children. The Court ordered a Gladue Report to be written in which it was determined that both her parents attended residential schools, and was the victim of years of neglect, violence and abuse. The offender suffered with addictions throughout her life starting at a young age, and she was placed in a youth protection program for multiple years away from her family. She had lost a child the year prior to the offence and had not received any grievance support or services.

The Court considered multiple aggravating factors such as the quantity of drugs the accused had in possession, the nature of the drugs, the risk of reoffending, past convictions, the lack of empathy and to take responsibility, but also the vulnerability of the community where the drugs were to be sold. The Court also considered the mitigating circumstances such as the guilty plea, the offender’s collaboration with the police, the crime being one transaction, and the historical and systemic factors as an Aboriginal offender. With these considerations in mind, the Court sentenced the offender to a 20-month detention sentence and a 3-year supervised probation.