R v Leis, 2021 ONCJ 86

After Gladue factors were considered, a young Indigenous woman was sentenced to three years in a penitentiary for causing an explosion from colliding into a home while driving under the influence.

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Daniella Leis, pleaded guilty to four counts of impaired driving causing bodily harm contrary to s 320.14(2) of the Criminal Code. Driving with blood alcohol being twice the legal limit, she caused an explosion in the historic East Village of London when she severed a gas line as a result of her vehicle colliding with a home.

The accused is a 24 year old Indigenous woman, and is a registered member of the Six Nations of the Grand River Territory. A Gladue Report was prepared. There was a history of family members who attended residential schools, which resulted in an upbringing wrought with substance abuse and domestic violence.

Despite her Gladue factors, Ms Leis drove from Kitchener to London to attend a concert knowing that she would be consuming alcohol. Given the amount of alcohol consumed, as well as consuming marijuana, it is hard to see how she mistakenly believed she was in any condition to drive. This decision risked the lives and safety of others. Ms. Leis has high moral blameworthiness in this matter, although not as high as it otherwise would be in the absence of Gladue factors. She is fortunate that no one was killed as result of her conduct. Thereby, Ms. Leis is sentenced to three years in the penitentiary, concurrent on all matters.

R v Saddleback, 2020 ABPC 168

An Indigenous man with significant Gladue factors that diminished some of his moral blameworthiness, was given a global sentence of three years and three months imprisonment for a sexual assault and assault on his domestic partner, as well as for breaching a no-contact order.

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In 2020, Mr. Saddleback was found guilty after trial on one count of assault, contrary to s 266 and one count of sexual assault, contrary to s 271 of the Criminal Code (R v Saddleback, 2020 ABPC 168). The complainant was his domestic partner. Following his conviction, Mr. Saddleback entered guilty pleas to three other charges of breaching a court order, contrary to s 145(5)(b). The issue in this matter, is the determination of a fit sentence.

The complainant and the accused were in a domestic relationship but had been living separate and apart for a period of time. The accused returned to reside with the complainant in quarantine due to the COVID-19 pandemic. Beginning in the early hours of the night, the accused committed sexual assault that included non-consensual vaginal penetration and physically biting the complainant in varying places, that took many weeks to heal. It was only by escaping to a neighbor’s house and a subsequent call to the police did the assualt end hours later. A no-contact Order was issued under s 516(2) following the accused’s arrest prohibiting him from having any contact with the complainant. However, the accused telephoned the complainant from the Calgary Remand Centre. When the complainant declined to accept the call, Mr. Saddleback proceeded to call her several more times that day.

Viewed as a whole, the conduct of the accused in the case at bar constituted a grave violation of the complainant’s bodily integrity, resulting likely in serious emotional and psychological harm, as there was no victim impact statement submitted. This finding is consistent with the highly intrusive and violent nature of the sexual assault, the complainant’s testimony that she begged the accused to stop, and from her demeanor in court when describing the assault.

Mr. Saddleback is a 53-year-old Indigenous man. He was born in Wetaskiwin, and is the second eldest of eight siblings. Both his parents are now deceased. Growing up he witnessed physical abuse, as well as drug and alcohol consumption within the family beginning at an early age. He was apprehended by Child and Family Services on numerous occasions on and off between the ages of 3 and 12. He describes his experiences with the “white” foster families as varying from severe violence to one that was “loving” and had him involved in numerous organized sports. At the age of twelve, he moved back to Hobbema with his mother and sister, and did not return to foster care. Mr. Saddleback reports that he first consumed alcohol at the age of six, and tried marijuana at age seven. He had access to drugs and alcohol through his siblings and cousins, and was drinking regularly by the age of 14.

Mr. Saddleback has a grade 11 education. He reports that three generations of his family attended Residential Schools. Mr. Saddleback reports losing a number of close family members to violence, suicide and overdose. According to the Gladue report, Mr. Saddleback was not present for the births of any of his three biological children due to being incarcerated. He states he received no help for his FASD condition, and had to learn to manage the disorder on his own. Mr. Saddleback suffers from Antisocial and Borderline Personality Disorders. He has an extensive criminal record with over 90 adult convictions (present offences included) dating back to 1984 with few gaps in between.

The crime committed by Mr. Saddleback is serious. The harm to the complainant is significant, as is the harm to the community in undermining people’s sense of security and safety in their own homes. Mr. Saddleback has nine prior convictions for breaching different types of court orders, including one conviction for contempt of court. The current breaches (which were put in place to protect the complainant) were deliberate, and committed within a day of his arrest. All that being said, Mr. Saddleback presents with significant Gladue factors, which, when viewed through the lens of normal human experience, can be presumed to have contributed to his long history of criminal behaviour, present offences included. For that, his moral blameworthiness can be viewed as somewhat diminished, thereby a global sentence of three years and three months imprisonment would be a just and proportionate sentence.

R v Runions, 2021 ABQB 67

Although Gladue factors reduced an Indigenous offender’s overall blameworthiness, it was not enough to persuade the Court that he is not a risk to public safety or can be managed in the community. He is designated a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

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In 2019, Dillion Richard Runions pleaded guilty to one count of aggravated assault, contrary to s 268 of the Criminal Code, and a further count of breaching an undertaking given to a police officer, contrary to s 145 (5.1). The aggravated assault consisted of Mr. Runion, who was unprovoked, slamming a machete into the neck of his unsuspecting victim. This vicious attack was nearly fatal with the victim surviving only because of timely medical intervention. At the time of the machete attack Mr. Runions was bound by the terms of an undertaking given to a police officer, which stipulated that Mr. Runions should not be in possession of a weapon. Both offences occurred in 2017.

The Crown brough an application to designate Mr. Runions a dangerous offender and to be given an indeterminate sentence (R v Corbiere, [1995] OJ No 938; R v Bedard, 2009 ONCA 678; R v Gulliver, 2018 ABCA 387; R v Neve, 1999 ABCA 206; and R v Lyons, [1987] 2 SCR 309). Part of the prospective assessment of dangerousness, is answering the question of whether the behaviour is such that the pattern of conduct can be said to be substantially or pathologically intractable (R v Boutilier, 2017 SCC 64).

Mr. Runions spoke of a childhood history which included general family dysfunction, poverty, domestic violence, maternal substance abuse, abandonment, neglect, placement in foster care, and a chaotic life involving frequent moves and school changes. According to a Gladue report, Mr. Runions indicated that one of his placements involved a Métis family, and he was exposed to his Métis heritage, traditions, and cultural practices. Mr. Runions said he was sexually abused from a young age, and that he was sexually assaulted by one of his mother’s boyfriends and by a foster parent.

Mr. Runions told the Gladue report writer that he fled a group home at age 16 and joined a street gang called “Deuce’s of Central”. He said that he resided with gang affiliates until his first incarceration at 19, and then dropped out of school, consumed alcohol, used cocaine, trafficked in illegal substances, and engaged in negative and violent behaviour. Mr. Runions reported a sporadic work history including having worked as a cribber and a drywaller, his average length of employment was under six months, and his longest period of employment was two years. Mr. Runions reported that he was diagnosed as being bipolar disorder in 2005, depression and anxiety at 18 years old, and post-traumatic stress disorder in 2009. He also reported auditory hallucinations if he did not take various medications.

The quality and strength of the evidence of past and future events, together with the expert opinion concerning those events, demonstrates that it is likely Mr. Runions will cause death or injury through his failure to restrain his behaviour in the future. Mr. Runions has not yet received nor exhausted all treatment options that are available to him. In most cases through no fault of his own, Mr. Runions remains untreated in relation to some of his most pressing treatment needs. It is also notable that Mr. Runions, who has demonstrated a recently renewed interest with respect to his Indigenous background (having previously self-identified with Buddhism and later as a Muslim), at least while incarcerated, could elect to be placed within a separate multi-target stream such as the ICPM Multi-Target Program which emphasizes Indigenous healing through traditional and cultural means, and importantly and supportively permits access to Elders for guidance and support.

Unfortunately, Mr. Runions cannot be trusted and his persistent disingenuous presentation makes treatment functionally impossible. It is also highly likely that Mr. Runions will resume gang-affiliations once released from custody. There is no suggestion in the evidence that he has ever succeeded in divesting himself (long-term) from his gang-lifestyle while not in a structured custodial setting. Mr. Runions acknowledged that he was still at the top of the pyramid when he was asked about his gang connections.

Mr. Runions has a very high risk for general recidivism and for violently reoffending. His Gladue factors does reduce his overall blameworthiness, but they do little to change the obvious gravity of the grave circumstances of the predicate offence, and the fact the Mr. Runions violently injured and endangered the life of three people in approximately a one-month period. The Gladue considerations do not persuade the Court that Mr. Runions’ risk to public safety can be controlled or managed in the community. Mr. Runions is a dangerous offender and he is sentenced to detention in a penitentiary for an indeterminate period. Given the circumstances, including the past criminal record, a fit and proper sentence in relation to the conviction under s 145(5.1) of the Criminal Code is 6 months imprisonment.

R v Papequash, 2021 ONSC 727

Application granted. An Indigenous applicant has met their onus on judicial review, as the Justice of the Peace made an error in law by failing to consider Gladue principles at the bail hearing. The applicant will be released on their own recognizance in the amount of $500, and be supervised by the Toronto Bail Program.

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The Applicant, Deeandra Papequash (“they/them” preferred pronouns), was denied bail in 2018, and seeks review of this denial of bail. The Applicant is facing four separate sets of charges that involves assaultive and threatening behaviour, petty theft, possessing or using a knife, and failing to follow conditions of bail. They had been released on bail before, on these charges and more than once. But when all the charges came again before the Justice of the Peace on December 18th, 2018, after they had again been arrested on new charges, those releases came to an end. The Justice of the Peace did not release the Applicant again, and detained Deeandra Papequash on the secondary ground. The Justice of the Peace made a serious mistake in his decision. There is also a new and material change in the Applicant’s situation.

Deeandra Papequash is 34 years old, is mixed Cree and Saulteaux, and a member of Key First Nation. A Gladue report which had been previously prepared, was given to the Justice of the Peace. It describes the horrible childhood endured by the Applicant, including sexual abuse, physical abuse and discrimination at being a two-spirited person. The Applicant suffers from many mental illnesses including Fetal Alcohol Syndrome, ADD, PTSD, anxiety, depression, as well as alcohol and drug addiction. There was also involvement in gang activity in Regina and long periods of jail. Though the Applicant currently stands charged with assaulting their intimate partner, she remains supportive.

Given Deeandra Papequash’s lived experiences as an Indigenous person, the question of their release required a careful application of the Gladue principles (R v Gladue, [1999] 1 SCR 688), which the Justice of the Peace did not do. Failure to consider Gladue principles at a bail hearing is a serious error of law (R v Robinson, 2009 ONCA 205).

Deeandra Papequash has been living precariously, including in shelters. At the bail hearing, it was hoped that secure and stable subsidized housing would become available sometime soon. This housing opportunity is now available through the COTA organization, where a one bedroom awaits them, but this offer is time limited. If the Applicant does not move into the apartment within three weeks, COTA will no longer hold it for them, which is a material change in circumstances. At the bail hearing this housing had not yet crystalized. The stable supportive housing is now real and this material change is significant. The law permits the Court to consider anew whether Deeandra Papequash has met their onus on this bail review regarding the primary, secondary, and tertiary ground for release.

The Applicant proposed a Bail Program release and the Bail Program has approved them. Given the Applicant’s life trajectory bent by trauma, the focus regarding bail should not be on whether a surety is available to supervise them. Rather it should be on whether supports can be put into place to meet secondary ground concerns. The criminal record, which is bad, must also be seen through a Gladue lens. While this does not extinguish the secondary ground concerns, it provides an explanation and a context for this criminal record. A number of organizations and professionals with skill, experience, and compassion have offered support if Deeandra Papequash is released on bail. They know the Applicant’s weaknesses as well as strengths, emphasizing that jail is not a good place for someone like Deeandra Papequash.

Secure housing can be crucial to the rehabilitation and treatment of people with mental health problems, addictions, and other challenges born from the effects of discrimination and marginalization. It provides the steady and firm ground for people to climb out of poverty. Stable housing means stable people, thereby reducing conflict with the law and better protecting the community. Deeandra Papequash has never received such intensive wraparound services before. Deeandra Papequash has met their onus and will be released on their own recognizance in the amount of $500. They will be supervised by the Toronto Bail Program. They will abide by the conditions set out by the Toronto Bail Program and the conditions proposed by the Applicant including no contact, treatment, and counselling.

R v Hiscock, 2020 BCCA 355

Appeal allowed. An Indigenous offender was given an effective global sentence of six years on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The sentencing judge failed to give sufficient weight to the systemic factors documented by the offenders’ Gladue report; thereby he erred in his application of s 718.2(e) of the Criminal Code.

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Coda Hiscock was sentenced to six years incarceration on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The Court observed that the question is not what sentence they would have imposed; but rather, the deferential standard which intervenes only where a sentencing judge has committed an error in principle, or imposed a demonstrably unfit sentence (R v Friesen, 2020 SCC 9).

Mr. Hiscock contends that his sentence is unfit because of the failing to reasonably weigh the importance of his Aboriginal heritage and the intersectional systemic factors which have affected the offender (R v Gladue; R v Ipeelee). The failure to give sufficient weight to these factors amounts to an error in principle which is sufficient to allow the appeal.

The offence occurred in March 2018, when Mr. Hiscock fired at least seven shots from a semi-automatic firearm from the interior of a residence. The shots penetrated the interior walls of the residence causing myriad of damage, with at least three shots having struck unoccupied cars parked outside the building. The judge found that earlier that day Hiscock has used methamphetamines and that at the time of his arrest his demeanor indicated one who was high and possibly in a psychotic or manic state.

Mr. Hiscock was 31 years old at the time of the offence. His mother was a member of the Ojibwe First Nation, and his maternal grandmother and great-great-grandmother attended residential schools in Saskatchewan. His youth was disrupted by the dissolution of his mother and stepfather’s relationship, and subsequent alchohol abuse by his mother. His mother died from a drug overdose. He has also lost a nephew to drug overdose. Six months after the passing of his mother, one of his brothers was murdered. Six months prior to the offence giving rise to the sentencing, Mr. Hiscock’s girlfriend was murdered.

In considering the offenders relatively moderate criminal record which had not previously attracted federal custody, the mitigating factors evinced by his pre-sentencing and Gladue reports, and the comparative analysis of similar offences, the Court considers a global sentence of five years incarceration is fitting. In comparison to other offenders who committed similar offences, the sentencing judge levied a disproportionately onerous sentence on Mr. Hiscock for possession of a loaded firearm compared to others with more serious criminal records. Accordingly, the Court concludes that the reduction of a five-year sentence to four years would bring the offender’s sentence into the appropriate range. Given credit for time served, Mr. Hiscock’s sentence is one year, 315 days.

R v LR, 2021 BCPC 7

Although the sentencing judge still views a new joint submission of 180 days jail plus probation and mandatory ancillary orders as unduly lenient for an Indigenous man’s public and violent attack on his spouse at an elementary school in front of their child, it does not meet the threshold to reject the joint submission.

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L.R. is before the Court for sentencing a second time after having pleaded guilty in 2020, to three offences charged as a result of a violent altercation with his former spouse and the investigating RCMP officers. Joint submission by counsel was rejected for being unduly lenient (R v LR, 2020 BCPC 80 (CanLII)). Counsel has returned to Court with a new joint submission for a global sentence of 180 days jail plus probation and mandatory ancillary orders.

L.R. and C.L. met in highschool and cohabitated for ten years from 2008 to 2018 and are the biological parents of two children, one aged eight years old, the other three years old. L.R. came to an elementary school with his son to attend a birthday party where he encountered C.L. in the school parking lot. L.R. says C.L. showed him nude or “near nude” photographs of herself she had sent a number of friends and relatives. He became angry and began arguing with her. C.L. then picked up her son and ran to the school office and asked the receptionist to call the police. Enraged, L.R. chased after C.L. When he caught up with her in the school office, he grabbed her hair and began punching her in the head, even though at the time she was holding their child. He then threw C.L. on the floor and began kicking her in the ribs. Throughout this assault, L.R. was yelling at and threatening to kill C.L.

Eventually the staff succeeded in separating L.R. from C.L. L.R. took their son and left the school. The staff complained to the RCMP, who came to the school where they found C.L. L.R. left the school with his son and drove to his parents’ residence and asked his parents to keep his son safe. L.R. picked up a collapsible baton and a hunting knife at his residence and then drove to the house of his friend. In an attempt to locate him, the police called L.R.’s cell phone where he answered and uttered threats. The constables attended the friend’s residence where they believed L.R. might be hiding. L.R. was caught inside a smoke shack with the weapons. He continued to utter threats, then eventually held his weapons up and took a half step forward and was pepper sprayed.

While in custody, L.R. wrote apology letters to C.L., his son, and his parents. L.R. says he did not deny making threats to the officers or swinging the baton, but did not recall his interaction with the police, other than being pepper sprayed. L.R.’s present circumstances and antecedents are well documented in the presentence reports. L.R. is a member of a First Nation and was 27 years old at the time of the offence and 28 at sentencing. Until his banishment as a result of the offences, L.R. lived most of his life in the First Nation, as did most of his extended family. L.R. did work sporadically for the First Nation’s village government as a labourer, however, he was unable to sustain steady employment. Nevertheless, L.R. actively harvested fish and game to provide for his family, community and Elders.

C.L. and L.R.’s relationship was discordant. A social worker of the respective Child & Family Services Society, blames their problems on L.R.’s abusive behaviour. She depicts C.L. as the victim of the worst case of battered wife syndrome she has ever worked with. L.R. and C.L. separated permanently as a result of the school incident. After L.R. and C.L. separated, the children now live with C.L. At the hearing, the Court was not aware L.R. had issues of substance misuse. The presentence reports prepared for this continuation of the sentencing hearing tell a very different story. L.R. admitted to “selling and using cocaine” daily up to the time of his arrest.

While on remand at the Kamloops Regional Correction Centre, L.R. completed the 12-session Substance Abuse Management program and the 10-session Respectful Relationships programs. Since his release, L.R. sought and participated in individualized addictions and anger management counselling with an addiction specialist with the Terrace and District Counselling Services Society. L.R. does not speak or understand his Indigenous language nor does he participate in the spiritual or cultural activities to any significant degree. The Presentence Report and Gladue Report reference a number of support letters from Elders acknowledging L.R. as a skilled and generous hunter and fisher who provided sustenance fish and game to the community.

Although his grandparents attended residential school, L.R.’s upbringing was free of any trauma, physical or emotional abuse, neglect, abandonment, substance misuse, domestic discord or violence. L.R. grew up hunting and fishing with his father and extended family. L.R. remains close to his parents and siblings who have supported him throughout these legal proceedings. As a result of L.R.’s charges, his First Nation’s village government banished L.R. The village sent a letter to the RCMP and Terrace Crown Counsel advising that out of concern for the well-being of their citizens, the village government banished L.R. indefinitely from attending until he seeks medical or therapeutic attention for his actions and proves he is fit to return to their community.

While they are not immutable or sacrosanct, joint submissions should only be rejected in exceptional circumstances (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]; R v Spencer-Wilson, 2020 BCPC 140 (CanLII)). There are exceptional circumstances in this case to justify a lesser period of incarceration than might otherwise be imposed. Still, L.R.’s assault on C.L. at the elementary school was outrageous. The sentence that counsel now propose is still not one, absent a joint submission that the Court would otherwise impose. Although the Court believes the joint submission for 180 days jail sentence is unfit, perhaps even demonstrably unfit, it is unable to conclude its acceptance would cause a reasonable person to conclude “the proper functioning of the justice system had broken down” (Anthony-Cook). L.R. has 204 days of pre-detention credit, and has served the 180 day jail sentence. He is subject to an 18 month Probation Order with terms and conditions.

R v Hall, 2021 ONSC 420

A Mohawk man has been designated a dangerous offender and sentenced to a period of imprisonment of 8 years in addition to the 769 days he has served since his arrest, followed by a Long-Term Supervision Order for 8 years. The protection of the public was paramount but it is not required that the offender should be subject to external controls for the rest of his life, as would be the case with an indeterminate sentence.

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Edward Hall, a Mohawk man, has entered guilty pleas to the offences of aggravated assault, break and enter, choking, and failing to comply with probation. Mr. Hall is 51-year-old years old. At the time he committed the offences, he was bound by two probation orders relating to two convictions for aggravated assault.

Mr. Hall has a criminal record in both Canada and the United States. Between the two countries, he has been convicted of approximately 60 offences. His Gladue report provided a detailed history of Mr. Hall’s childhood. His mother was a registered Mohawk of Akwesasne band member and former resident. His father was half-Mohawk. Both died in 2019 while Mr. Hall was in custody. Akwesasne is a nation of Mohawk people situated along the banks of the St. Lawrence River. It straddles the border between the United States and Canada, and includes territory within the jurisdictions of New York State, Ontario, and Quebec. The Mohawks of Akwesasne have been severely impacted by policies of assimilation aimed at eradicating Indigenous cultures. The intense suffering these policies have caused have had intergenerational impacts that continue to be felt today.

The impacts of this intergenerational trauma are evident in Mr. Hall’s history, including the physical and emotional abuse he suffered as a child; his early addictions to alcohol, marijuana, and cocaine; his loss of his connection to his community; the lack of employment skills, education, and functionality; and the racism he has faced in various communities and institutions. Mr. Hall states that the trauma that he experienced as a child has stayed with him, where he has nightmares and flashbacks of abuse.

The Waseskun Healing Center [“Waseskun”] is recommended as an option for residential treatment that has a culturally focused approach. However, Mr. Hall’s prior history of community supervision is noted to have been poor in almost every instance. In addition, he breached the last probation order imposed upon him, both by committing the index offence and by engaging in smuggling to support himself.

Public protection is the general purpose of the dangerous offender provisions. The protection of the public is an enhanced sentencing objective for individuals who have been designated dangerous, even while sentencing judges retain the discretion to “look at the whole picture”. The sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the legislation (R v Boutilier, 2017 SCC 64; R v Spilman, 2018 ONCA 551). Mr. Hall’s most serious offences have occurred while he was in his 40s. This pattern, however, does not place him outside the statistical pattern in the literature that sees persons who share his characteristics significantly diminishing at least the frequency of their offending in their 50s and 60s.

Mr. Hall committed a vicious assault in the context of a planned home invasion offence while he was on two probation orders relating to two recent convictions for aggravated assault. He used a weapon and choked his victim to the point of unconsciousness. The public must be protected from conduct like this by Mr. Hall in the future. On the mitigating side, the Court considered Mr. Hall’s diminished moral blameworthiness for the offences given the impact of Gladue factors, and that he pleaded guilty to the predicate offences.

Mr. Hall is designated a dangerous offender. The custodial sentence of 8 additional years will bring Mr. Hall to the age of roughly 59.5 years. The Long-Term Supervision Order [“LTSO”] will continue until Mr. Hall is 67. The custodial portion of the sentence will provide Mr. Hall with time to take the treatment offered to him and demonstrate that he can apply any lessons he has learned to reduce his risk. Parole will be available to him if he makes sufficient progress. A lesser sentence will not adequately protect the public. The need to protect the public militates against awarding enhanced credit to Mr. Hall for his presentence custody of 769 days. Awarding enhanced credit would reduce the period of time for which Mr. Hall will be subject to outside controls. On the totality of the evidence, this is the least intrusive of the options to adequately protect the public against Mr. Hall’s future commission of murder or a serious personal injury offence.

As for the importance of treatment with a cultural component such as that offered at Waseskun, if Mr. Hall has access to treatment that incorporates Indigenous culture and values, this is for the good insofar as it may assist him with certain personal issues and in reintegrating into the community. In the event Mr. Hall makes sufficient progress with his skills-based treatment for anger management and substance abuse and reduces his risk of reoffending, he may apply to and be accepted at Waseskun. If Mr. Hall does not make progress during the custodial part of his sentence, he can expect that this opportunity will not be available to him, even while serving the LTSO, because he will be ordered to reside at a community correctional centre.

R v Olson, 2021 BCSC 61

An appropriate cumulative sentence of 11 and ½ years is imposed for an offender found guilty for a string of offences that are violent. Despite a tenuous connection to some Indigenous heritage, a Gladue report was ordered and considered in the sentencing process.

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Mr. Olson was found guilty, following a trial, of six counts contrary to the the Criminal Code from events that took place in 2017, including assault with a weapon, contrary to s 267(a); the reckless discharge of a firearm; possession of a loaded prohibited firearm (a sawed off shotgun) without a licence; possession of a firearm while prohibited; possession of stolen property in excess of $5000; and resist or wilfully obstruct a peace officer.

A Gladue report was obtained for Mr. Olson upon the Crown learning of possible Indigenous heritage. Mr. Olson, now 41, has a very lengthy criminal record, reaching back to 2001, with 58 prior convictions. Mr. Olson had a troubled childhood and felt unfairly treated by his stepfather. He recently reconnected with his mother and learned that there could be some Indigenous heritage on his mother’s side, that is a great, great grandmother, was believed to be First Nations. According to the Gladue report, Mr. Olson has six children with different mothers, and maintains some limited contact with one of his children. The Gladue report writer, noted that the Indigenous lineage could not be independently corroborated, and focussed on corrections and community resources available to Mr. Olson arising out of this somewhat tenuous connection.

It is clear from the nature of his offences and the risk of Mr. Olson reoffending that the principles of deterrence and denunciation are paramount, along with the protection of the public. However, there is a potential for rehabilitation that must also be taken into account, including considering the principles set out in s 718.2(b), (c), (d) and (e), that is, parity of sentencing, the totality principle, and restraint in imposing terms of imprisonment.

This string of offences is long and involves violence. Although there are connections between some of the counts, the indictment has a number of offences with slight or no connections. It is difficult to determine an appropriate and fair approach. Concurrent sentences are used where appropriate, but some of the sentences must necessarily be consecutive (R v M(CA), [1996] SCR 500). A total of 11 1⁄2 years, with credit for time served, is an appropriate cumulative sentence of this series of offences, and does not offend the totality principle.

R v Wood, 2021 MBQB 4

An imposed sentence for 18 years’ incarceration is considered fit for an Indigenous offender convicted of manslaughter for killing his wife. His moral blameworthiness, even when tempered for his Gladue circumstances, is very high. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Indigenous women. While restorative sentences are important in many situations of an Indigenous victim and abuser, that is far less so in cases of murder or manslaughter.

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In 2018, Jonathon Wood was convicted of manslaughter for killing his wife, Kathleen Wood, in their home community of St. Theresa Point First Nation, Manitoba. Both Mr. Wood and his wife are Indigenous persons who were raised, and lived in the isolated First Nation with a population of about 4,000 people, accessible only by air, boat or winter ice-road. They began their relationship in 2004 and were married in 2010. Mr. Wood intermittently assaulted Mrs. Wood since 2012. He was convicted of assaulting her four times. By this point, they had three children together, along with an older boy from Mrs. Wood’s prior relationship. These assaults followed a consistent pattern.

When Mr, Wood attacked Mrs. Wood in 2013, 2014 and 2015, he was on some form of bail or probation aimed at reducing the chance he would assault her again. When he ultimately assaulted and killed her, he was still bound by two Probation Orders which stipulated he was not to have contact with Mrs. Wood and imposed restrictions on him when drinking. Regardless of these Orders, Mr. Wood was charged again for assault and aggravated assault of several people, including Mrs. Wood, as well as four probation breaches. He was released on a Recognizance which included not to communicate with Mrs. Wood, and in part, allowed him to be arrested even if he was just in the area of St. Theresa Point.

Despite the court orders, and his promise to abide by them, Mr. Wood went to St. Theresa Point to see his family and Mrs. Wood. A party took place at Mr. Wood’s brother’s residence, and all were intoxicated. As the evening progressed, Mr. and Mrs. Wood got into an argument, which eventually led to Mr. Wood assaulting Mrs. Wood with his fists and feet, repeating the escalating pattern of the four prior convictions. The brother wanted to check on Mrs. Wood, who was then lying on the floor, but Mr. Wood told him to leave her alone, that she was just passed-out. Concerned, the brother went next door for help but returned moments later to Mrs. Wood no longer breathing.

Mrs. Wood’s injuries were awful. The autopsy revealed the true devastation. The forensic pathologist detailed many injuries including numerous bones broken, including her jaw, left clavicle, left wrist and all 24 ribs, 23 of which had multiple fractures. She also suffered a subarachnoid hemorrhage, full-thickness tongue laceration, contusions and lacerations of the lungs and diaphragm, and contusion of the liver. There was no evidence Mrs. Wood’s injuries were caused by anything other than Mr. Wood beating her at the party.

A pre-sentence and Gladue report was prepared for sentencing. Mr. Wood left school with very little education, and no employable skills. There is nothing to suggest Mr. Wood experienced any mental health concerns. Poverty, unemployment, lack of education and substance abuse were negative influences in Mr. Wood’s upbringing. During the course of his times in custody, Mr. Wood participated in many programs, including anger management, parenting skills and healthy relationships.

The vulnerability of a victim, particularly a woman in a domestic context, are well established aggravating factors on sentencing and ones which emphasize denunciation and deterrence (R v LP, 2020 QCCA 1239). Generally, spousal killings attract a higher sentence, and greater condemnation, than other types of manslaughter (s 718.2(a)(ii) of the Criminal Code). Mrs. Wood’s Indigenous status, and living in a community so under-serviced and isolated as St. Theresa Point First Nation, heightened her vulnerability to spousal violence (R v AD, 2019 ABCA 396). It is clear that this event was not only catastrophic for Mrs. Wood but also for her four teenage children.

The nature of the beating was merciless. His previous pattern of beating Mrs. Wood and resulting convictions, his sober defiance of court orders, and his willful disregard for placing her, his wife, in situations of grave danger, adds considerably to his blameworthiness. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Indigenous women. There is the need to separate Mr. Wood from his community so he is no longer a threat to them.

R v Nahanee, 2021 BCCA 13

Appeal dismissed. The Appellant’s guilty plea was not accompanied by a joint submission on sentencing, thereby the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than what was sought by the Crown. The sentence was not demonstrably unfit, as the Appellant’s Indigenous heritage was taken into account when assessing aggravating factors.

Indigenous Law Centre – CaseWatch Blog

The Appellant, Mr. Nahanee, who grew up in the Squamish Nation Capilano Reserve in West Vancouver, pleaded guilty to two counts of sexual assault and was sentenced to eight years’ imprisonment. The first count was against SR on one occasion, the second was against EN on many occasions. The sentencing judge ordered a pre-sentence report, a psychiatric assessment, and a Gladue report.

The offences against EN were committed over a long period. EN lived in the care of her grandparents, together with the Appellant, her uncle, between 2010 and 2015. When she first moved into their home, she was 13 years old, and the Appellant was 19 years old. The Appellant repeatedly assaulted her at night, and when she was 14 years old, the assaults escalated with so much frequency she lost track of the number. EN came forward to the police in 2018, after learning that Mr. Nahanee had also assaulted her younger cousin, SR. SR had told her grandmother about past assaults by her uncle, but was not believed by her family.

Gladue factors were considered at length by the trial judge, but did not weigh significantly in sentencing. The Appellant had not endured violence or abuse, and was raised in a safe home. She described the Appellant’s family’s history, and his forebears’ experience in residential schools and their loss of cultural and spiritual connections. She placed significant weight upon the fact the victim and the community in question here were Indigenous, and the victims, as a result, were much more vulnerable to sexual assault than their non-Indigenous counterparts (R v Barton, 2019 SCC 33; R v SPS, 2019 BCPC 158).

The admission made by the Appellant, amounted to an admission that there had been prior, uncharged assaults, the victim had reported them to her grandmother, and she had been disbelieved. Given that the admission was made to assist the court in sentencing following a guilty plea, no other purpose could be served by the admission. It was certainly not an admission that the victim had previously made false reports to her grandmother.

The sentencing judge acknowledged the obligation to consider the Gladue principles in this case, as in every case involving an Indigenous offender. Having done so, it was not an error to consider the extent to which the offender himself was affected by cultural oppression, social inequality and systemic discrimination. Appropriate care was taken in this case to identify Gladue factors and to determine whether they attenuated the Appellant’s moral blameworthiness. It should be borne in mind that the application of the Gladue principles in this case must also have been tempered by consideration of the fact the victims were Indigenous children. The effort at reconciliation that, in part, motivates the Gladue approach to sentencing, is not served by sentences that do not sufficiently deter violence against Indigenous children.